PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ RENEWABLE FUELS ASSOCIATION; AMERICAN COALITION FOR ETHANOL; NATIONAL CORN GROWERS ASSOCIATION; NATIONAL FARMERS UNION, Petitioners,

v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, and
HOLLYFRONTIER CHEYENNE REFINING, LLC; HOLLYFRONTIER REFINING AND MARKETING, LLC; HOLLYFRONTIER WOODS CROSS REFINING, LLC; WYNNEWOOD REFINING COMPANY, LLC, Intervenors – Respondents.

__________________ THE AMERICAN FUEL AND PETROCHEMICAL MANUFACTURERS, Amicus Curiae. No. 18-9533 FILED United States Court of Appeals Tenth Circuit 

### January 24, 2020 Christopher M. Wolpert Clerk of Court2 _________________________________ Petition for Review from an Order of the Environmental Protection Agency (EPA No. 1-3876)

_________________________________ Matthew W. Morrison (Cynthia Cook Robertson and Bryan M. Stockton, with him on the briefs), Pillsbury Winthrop Shaw Pittman LLP, Wash ington, DC, appearing for Petitioners. Patrick R. Jacobi, Environmental Defense Sec tion, United States Department of Justice, Denver, Colorado (Jeffrey Bossert Clark, A ssistant Attorney Genera l, and Susan Stahle, Office of the General Counsel, United St ates Environmental Protection Agency, Washington, DC, with him on the briefs), appearing for Respondents. Peter D. Keisler (C. Fredrick Beckner, III, Ryan C. Morris, and Peter C. Whitfield, with him on the briefs), Sidley Austin, LLP, Wa shington, DC, appearin g for Respondents HollyFrontier Cheyenne Refining, LLC, Holly Frontier Refining & Marketing, LLC, and HollyFrontier Woods Cross Refining, LLC. Brian H. Potts and Jonathan G. Hardin, Perkins Co ie LLP, Madison, Wisconsin, on the briefs for Respondent Wynnew ood Refining Company, LLC. Richard S. Moskowitz, American Fuel & Pe rtrochemical Manufacturers, Washington, DC, and Robert J. Meyers and Thomas A. Lorenzen, Crowell & Moring, LLP, Washington, DC, filed an Amicus Curiae brief for American Fuel & Petrochemical Manufacturers, in support of Respondent.

_________________________________ Before BRISCOE , KELLY , and LUCERO , Circuit Judges.

_________________________________ BRISCOE , Circuit Judge.

_________________________________3 I. T HE C LEAN A IR A CT , RENEWABLE FUELS , AND SMALL REFINERIES ................... 7
A. L EGISLATIVE AND EXECUTIVE HISTORY ................................................. 7

B. R EGULATIONS AND POST

- ENACTMENT HISTORY .................................. 17

C. T HE EXEMPTION EXTENSION PETITIONS ............................................... 30

1. C HEYENNE .............................................................................. 32

2. W OODS C ROSS ........................................................................ 35

3. W YNNEWOOD .......................................................................... 37

II. T HE B IOFUELS C OALITION ’ S STANDING TO SUE ............................................... 38
III. O THER JURISDICTIONAL ISSUES ....................................................................... 58
A. T IMELINESS ......................................................................................... 58

B. R IPENESS ............................................................................................. 61

IV. T HE B IOFUELS C OALITION ’ S STATUTORY CONSTRUCTION CHALLENGES .......... 64
A. E XTENSION OF EXEMPTION .................................................................. 67

1. T EXTUAL ANALYSIS ................................................................ 69

2. T HE 2014 S MALL R EFINERY R ULE ........................................... 79

B. D ISPROPORTIONATE ECONOMIC HARDSHIP .......................................... 84

C. H ARDSHIP FROM COMPLIANCE ............................................................. 87

V. T HE B IOFUELS C OALITION ’ S ADDITIONAL CHALLENGES .................................. 89
VI. MOTIONS ......................................................................................................... 974 VII. C ONCLUSION ................................................................................................... 995 In the mid-2000s, Congress launched an effort to amend the Clean Air Act (“CAA”) to try to reduce the nation’s de pendence on fossil fuels. The resulting legislation set ambitious target s for replacing specified volum es of crude oil fuel with renewable fuels. The legisl ation created several exemp tions from this “biofuels” mandate, including a temporary exemption fo r small refineries if compliance in a given year would impose disproportionate economic hardship. The United States Environmental Protection Agency (“EP A” or “agency”) is charged with implementing the legislation, and the agen cy has promulgated numerous regulations for that purpose. At issue here are three EP A orders granting extensions of the small refinery exemption. Those orders were not made available to the public, for reasons later explained. The orders are being challe nged by a group of renewable fuels producers who say they found out about the extensions through news articles or public company filings. We refer to these producers collec tively as the Biofuels Coalition, and their petition to this court raises several important questi ons. The EPA opposes the Biofuels Coalition’s appeal. So do the th ree recipients of the small refinery extensions, who have been gr anted leave to intervene. As a preliminary matter, we conclude that the Biofue ls Coalition has standing to sue. Constituents of the Bi ofuels Coalition have establishe d an injury in fact in the form of lower prices, lower revenues, or increased competition with respect to the renewable fuels those constituen ts market and sell. For st anding purposes, this injury is fairly traceable to the EPA’s decisions to grant extensions of the three small6 refinery exemptions in questi on. A favorable judicial deci sion is likely to redress at least some of this in jury, assuming, as we must, that the EPA will continue to follow Congress’s directive to implement and fl esh out the renewable fuels program. We also conclude that th is court otherwise has juri sdiction over the matter. This case does not involve a challenge to a nationally-applicable agency rule, which challenge could only be heard in the United States Court of Appeals for the District of Columbia Circuit. The Clean Air Ac t contains a 60-day filing deadline with jurisdictional implications, butthat deadline is triggere d when final agency action appears in the Federal Regi ster. The EPA never publishe d the extension orders at issue. And although members of the Bi ofuels Coalition were not invited to participate in the proceedings that generated the orders, th e record is sufficient (and the controversy is ripe) for judicial resolution. On the merits, we agree in part with two of the Biofuels Coalition’s three statutory construction arguments. The am ended Clean Air Act allows the EPA to grant an “extension” of the small refinery exemption – not a stand-alone “exemption” – in response to a convincing petition. The statute limits exemptions to situations involving “extensions,” with the goal of forcing the market to accept escalating amounts of renewable fuels over time. None of the three small refineries here consistently received an ex emption in the years preced ing its petition. The EPA exceeded its statutory authority in granti ng those petitions becau se there was nothing for the agency to “extend.” Further, one of the EPA’s reasons for granting the petitions was to address disproportionate economic hardship caused by something7 other than compliance with the renewable fuels mandate. That, too, was beyond the agency’s statutory authority. The Biofuels Coalition additionally claims that the EPA read the word “disproportionate” out of th e statute, but we reject that argument. Once we move from the topic of statutor y authority, we disagree with almost all of the Biofuels Coalition’s asserti ons that the EPA acted arbitrarily and capriciously in granting the extension petiti ons. We hold that the agency did abuse its discretion, however, by failing to address the extent to which the three refineries were able to recoup their compliance costs by ch arging higher prices for the fuels they sell. The EPA has studi ed and staked out a policy position on this issue. One of the refineries expressly ra ised the issue in its extension petition. It was not reasonable for the agency to ignore it.
I. T HE C LEAN A IR A CT , RENEWABLE FUELS , AND SMALL REFINERIES As background for our textual analysis, we briefly summarize the legislative and executive history of the pertinent ame ndments to the Clean Air Act, along with the law’s provisions relating to small refine ries. We summarize EPA regulations and post-enactment legislative a nd executive branch pronoun cements concerning these small refinery provisions as well. We then describe th e orders issued by the EPA granting the three small refinery extensi on petitions at the h eart of this case.
A. L EGISLATIVE AND EXECUTIVE HISTORY Congress changed the “Renewable Cont ent of Gasoline” wh en it amended the Clean Air Act through the Energy Policy Act of 2005 (“Energy Policy Act”), Pub. L. No. 109-58, 119 Stat. 594. The Energy Polic y Act directed the EPA to promulgate8 regulations to ensure that gasoline sold or introduced into commerce in the United States included rising amounts of renewabl e fuel, going from four billion gallons in 2006 to seven and a half b illion gallons in 2012. Id. §§ 1501(o)(2)(A)–(B). Renewable fuel targets for 2013 and beyond were to be determined later. Id. § 1501(o)(2)(B)(ii). The statute also crea ted a “Credit Program” under which fuel refiners, blenders, or importers could buy or sell compliance credits. Id. § 1501(o)(5). The Energy Policy Act c ontained a “Temporary Exemption” until calendar year 2011 for small refineries, de fined as those “for which the average aggregate daily crude oil throughput for a calendar year (as dete rmined by dividing the aggregate throughput for the calendar year by the numbe r of days in the calendar year) does not exceed 75,000 barrels.” Id. §§ 1501(o)(1)(D), 1501(o)(9)(A)(i). The statute instructed the EPA to extend this exemption for at least two years for any small refinery identified in an upcoming st udy by the Department of Energy (“DOE”) as suffering “disproportiona te economic impact if required to comply[.]” Id. §§ 1501(o)(9)(A)(ii)(I)–(II). Congressional reports on the proposal s that became th e Energy Policy Act foreshadowed these provisions. A House re port stated that H.R. 1640 would increase the volume of renewable fuels from 3.1 b illion gallons in 2005 to 5.0 billion gallons in 2012, and “would allow refi neries, blenders, and importe rs to accumulate and trade credits[.]” H.R. Rep. No. 10 9-215, pt. 1, at 221, 270 (200 5). A Senate report stated that a “major provision” of S. 10 would in crease the volume of renewable fuels from four billion gallons in 2006 to eight billion gallons in 2012, with provisions relating9 to “participation by small refi ners” and “a fuel producer cred it and trading program.” S. Rep. No. 109-78, at 2, 18–19 (2005). The reports from both chambers discussed the overall policy objectives of the legislation. See id. at 1, 6 (“The widening gap between supply and demand, accompanied by reliance on foreign sources to close that gap, has created prof ound concerns in the Congress over the nation’s energy security. . . . Coupled with those concerns is the re cognition that meeting demand must be accomplished in an environmen tally sound manner.”); H.R. Rep. No. 109- 215, pt. 1, at 169 (“Energy s ecurity is critical in a world of growing demand and regional political instability. Dependence on any single sour ce of energy, especially from a foreign country, leaves America vulnerable to price shocks and supply shortages.”). President George W. Bush signed the En ergy Policy Act into law. He stated that the bill “will strengthen our economy, and it will improve our environment, and it’s going to make this country more secu re.” Remarks on Signing the Energy Policy Act of 2005 in Albuquerque, New Mexico , 41 Weekly Comp. Pres. Doc. 1262 (Aug. 8, 2005), reprinted in 2005 U.S.C.C.A.N. S17, S19. The President observed that “[t]he bill also will lead to a greater diversity of fuels for cars and trucks. The bill includes tax incentives for producers of et hanol and biodiesel. The bill includes a flexible, cost-effective rene wable fuel standard that w ill double the amount of ethanol and biodiesel in our fuel s upply over the next 7 years.” Id. at 1264–65, S22. The President added that “[u]sing ethanol and bi odiesel will leave ourair cleaner. And every time we use a home-grown fuel, partic ularly these, we’re going to be helping10 our farmers and, at the same time, be less dependent on foreign sources of energy.” Id. at 1265, S22. Congress expanded the provisions of the Energy Policy Act relating to renewable fuels – and furt her amended the Clean Air Act – through the Energy Independence and Security Act of 2007 (“ Energy Independence and Security Act”), Pub. L. No. 110-140, 121 Stat. 1492. Thos e changes and others are now reflected in section 7545(o) of Title 42. The current version of the statut e increases renewable fuel obligations in at least four categories: (1) renewable fuel, defi ned as “fuel that is produced from renewable biomass and that is used to replace orreduce the quantity of fossil fuel present in a transportation fuel ,” is targeted to rise from four billion gallons in 2006 to 36 billion gallons in 2022, 42 U.S.C. §§ 7545(o)(1)(J), 7545(o)(2)(B)(i)(I); (2) advanced biofuel, ge nerally defined as renewable fuel “other than ethanol derived from co rn starch” with lifecycle greenhouse gas emissions at least 50 percent less than baseline, 1 is targeted to rise from 0.6 billion gallons in 2006 to 21 billion gallons in 2022, id. §§ 7545(o)(1)(B), 7545(o)(2)(B )(i)(II); (3) cellulosic biofuel, defined as renewable fuel “derived from any cellulose, hemicellulose, or lignin that is derived fro m renewable biomass” w ith lifecycle greenhouse gas emissions at leas t 60 percent less than baseline, is targeted to rise from 0.1 billion gallons in 2010 to 16 b illion gallons in 2022, id. §§ 7545(o)(1)(E),

1 The statute defines “baseline lifecy cle greenhouse gas em issions” as “the average lifecycle greenhous e gas emissions,” as dete rmined by the EPA, for “gasoline or diesel (whichever is bei ng replaced by the renewable fuel) sold or distributed as transpor tation fuel in 2005.” 42 U.S.C. § 7545(o)(1)(C).11 7545(o)(2)(B)(i)(III); and (4 ) biomass-based diesel (“BBD ”), defined with certain exceptions as renewable fuel that is “biodiesel” wi th lifecycle greenhouse gas emissions at leas t 50 percent less than baseline, wa s targeted to rise from 0.5 billion gallons in 2009 to one billion gallons in 2012, with volumes in later years to be set by the EPA in consultation with the DOE. Id. §§ 7545(o)(1)(D), 7545(o)(2)(B)(i)(IV), 7545(o)(2)(B)(ii). As amended, this portion of the Clean Air Act contains additional provisions on greenhouse gas emissions. For renewa ble fuel produced from new facilities commencing production after December 19, 2007, the law states that such fuel must achieve “at least a 20 per cent reduction in lifecycle greenhouse gas emissions compared to baseline lifecycle greenhouse gas emissions.” Id. § 7545(o)(2)(A)(i). Several emissions are each identified as a “greenhouse gas,” and the EPA is authorized to include, af ter notice and comment, “a ny other anthropogenicallyemitted gas” determined “to c ontribute to global warming.” Id. § 7545(o)(1)(H). The term “lifecycle greenhouse gas emissions ,” in turn, is defined to include the aggregate quantity of emissions “related to the full fuel lifecycle” where “the mass values for all greenhouse gases are adjust ed to account for their relative global warming potential.” Id. The statute directs the EPA to issue regul ations to ensure th at the requirements of the law are met. Id. § 7545(o)(2)(A)(iii). The statut e also directs the EPA, after receiving an estimate of renewable fu el volumes from the Energy Information Administration (“EIA”) by October 31 of each year from 2005 through 2021, to12 “determine and publish in the Federal Re gister” by November 30 of each year the renewable fuel obligations for the upcoming year. Id. §§ 7545(o)(3)(A)–(B). The EPA expresses these obligations in terms of a “volume pe rcentage” of transportation fuel sold or introduced into commerce in the United States. Id. §§ 7545(o)(3)(B)(ii)(I)–(III). As discussed in more detail below, this process involves transforming aggregate volumes from the EIA into individual compliance obligations. The EPA estimate s what percentage of the overall fuel supply each of the four renewable fuel types specified in the statute should constitute, and requires designated entities to replic ate those percentages on an individual basis. The law states that yearly renewable fuel obligations are “applicab le to refineries, blenders, and importers, as appropriate[.]” Id. § 7545(o)(3)(B)(ii). The Energy Independence and Security Act continued the credit program established by the Energy Policy Act. The cu rrent version of the statute envisions the generation of credits for re fined, blended, or importe d gasoline with greater-thanrequired quantities of renewable fuel; for the us e or transfer to another person of such credits; and for carrying forw ard a renewable fuel deficit in certain circumstances (a deficit that must be addre ssed “in the calendar year follo wing the year in which the renewable fuel deficit is created”). Id. §§ 7545(o)(5)(A)–(B), (D). The law states that a credit “shall be valid to show compliance for the 12 months as of the date of generation.” Id. § 7545(o)(5)(C). The Energy Independence and Security Ac t also continued to make available a small refinery exemption. The definition of “small refinery” still looks to whether a13 refinery has average aggregate daily crude oil throughput for a calendar year of 75,000 barrels or less. 42 U.S.C. § 7545(o)(1)(K). The “Temporary exemption” was again written to apply to small refineries until 2011, with a mini mum extension of the exemption of two years for any such refi nery determined to be subject to a disproportionate economic hardship by a DO E study to be conducted no later than
2008. Id. §§ 7505(o)(9)(A)(i)–(ii). Small refine ries continue to be able to petition the EPA “at any time” for an extension of this exemption. Id. § 7545(o)(9)(B)(i). The EPA is obligated to “m ake adjustments” when dete rmining the renewable fuel volume percentages for an upcoming cale ndar year to “account for the use of renewable fuel during the previous cale ndar year by small refineries that are exempt[.]” Id. § 7545(o)(3)(C)(ii). Several supporters of the Energy Independence and Security Act in the Senate highlighted that the bill s ubstantially increased renewa ble fuel requirements to promote energy independence and environmenta l stewardship. In the words of one legislator: To help reduce our dependence on imported oil, and on oil consumption, this bill st rengthens the renewable fu els standard. It sets clear benchmarks for higher levels of production of bi ofuels made from corn as well as other feedstocks, in cluding soybean oil, switchgrass, and other sources of energy thatwill be developed in the future. With this bill we will shift some of our ener gy reliance from the oilfields of the Middle East to the corn fields of the Midwest. The bill will ratchet up the schedule for the use of renewable fuels in our cars and trucks from the level of 7.5 billion gallons by 2012, as passed in the 2005 Energy Bill, to 15 billion gallons by 2015 a nd 36 billion gallons by 2022. That represents a major advance in ourcommitment to renewable, home grown fuels that reduce emissions , mitigate global warming, and improve farmer income.14 153 Cong. Rec. S15421, S15429 (daily ed . Dec. 13, 2007) (statement of Sen. Durbin); see also id. at S15428 (statement of Sen. J ohnson) (commenting that “[t]his bipartisan bill builds on the success of the Energy Policy Ac t of 2005, which authorized the first nationwide renewable fu el standard, RFS,” th at the bill will ramp up “the amount of ethanol and cellulosic et hanol produced in this country so that by 2020 the United States will produce a mini mum of 36 billion gallons of renewable fuels,” and that “[w]e are goi ng to produce more fuel fr om renewable resources and over the long-term decrease the amount of fossil fuels we need to import from unstable regions of the globe”); id. (statement of Sen. Card in) (“H.R. 6 raises the annual requirement for the amount of renewabl e fuels used in cars and trucks to 36 billion gallons by 2022. H.R. 6 makes a hi storic commitment to develop cellulosic ethanol by requiring that the United States produce 21 billion ga llons of advanced biofuels, like cellulosic ethanol. Home grown renewable fuel s will replace the equivalent of all the oil we import from the Middle East toda y.”); 153 Cong. Rec. S15004, S15008 (daily ed. Dec. 7, 2007) (statement of Sen. Reid) (“This legislation makes an unprecedented commitment to Amer ican-grown biofuels by increasing the renewable fuels standard to 36 billion gallo ns by the year 2022, which will not just reduce our addiction to oil but cr eate American jobs as well.”). Certain members of the House of Repres entatives likewise embraced the view that the substantial increa se in renewable fuel utili zation envisioned by the Energy Independence and Security Act would pr oduce geopolitical and environmental15 benefits. 153 Cong. Rec. H16659, H16744– 45 (daily ed. Dec. 18, 2007) (statement of Rep. Jackson-Lee) (“[T]ransitioning fro m foreign oil to ethanol will protect our environment from dangerous carbon and greenhouse gas emissions. With its commitment to American biofuels, the legi slation calls for a si gnificant increase in the Renewable Fuels Standard. It encourages the diversif ication of American energy crops thus ensuring that bi odiesel and cellulosic sources are key components in America’s drive to become energy independent.”); id. at H16749 (statement of Rep. Udall) (“And it will increase the Renewable Fuels Standard (RFS), which sets annual requirements for the amount of renewable fuel s produced and used in motor vehicles. The new RFS has specific requirements for th e use of biodiesel a nd cellulosic sources to ensure that these ethanol sources also advance along with corn-based ethanol. Furthermore, the bill include s critical environmental safe guards to ensure that the growth of homegrown fuels helps to re duce carbon emissions.”); 153 Cong. Rec. H14434, H14437 (da ily ed. Dec. 6, 2007) (state ment of Rep. Conyers) (“The legislation before us today also reduces our dependence on foreign oil. The initiative includes a historic commitment to American biofuels that will fuel our cars and trucks.”); id. at H14439 (statement of Rep. Engel) (stating that the legislation makes “an historic commitment to American grown biofuels,” including an RFS “which will ensure that a percentage of our nation’s fuel supply will be pr ovided by the domestic production of biofuels,” providing a pathwa y “for reduced consumer fuel prices, increased energy security, and growth in our nation’s factories and farms”).16 The substantial increase in renewable fuel targets in the Energy Independence and Security Act also prompted some objections to the legislation. See, e.g., 153 Cong. Rec. E2589, E2589–90 (daily ed. Dec. 17, 2007) (statement of Rep. Herger) (“H.R. 6 seeks to raise the current ethanol requirement by a factor of five. Such a dramatic increase, combined with growing demand for corn-fed meat products the world over, will likely result in even higher food prices for U.S. consumers.”); 153 Cong. Rec. S15421, S15422–23 (daily ed. Dec. 13, 2007) (s tatement of Sen. Inhofe) (“The renewable fuels standard increase is going to manda te an increase from 7 1⁄2 to 15. That is of corn ethanol. Then other bio increases are more than that. . . . [T]he livestock and the poultry people . . . are very distressed because of the increase in the cost of feedstock. This is going to ma ke it that much wors e. There are other problems with that too, with ethanol’s effect on food prices: econ omic sustainability, transportation infrastructure needs, the wate r usage in that proc ess.”); 153 Cong. Rec. H14434, 14441 (daily ed. Dec. 6, 2007) (statement of Rep. Goodlatte) (“This legislation would dramatically expand the Renewable Fuels Standard (RFS) by increasing it to 36 billion gallons by 2022. Th is initiative is extr emely ambitious . . . . The RFS provisions create an unrealistic mandate for advanced biofuels technology that doesn’t yet exist and creates hurdles for the development of second generation biofuels . . . .”). The objections did not carry the day, a nd President George W. Bush signed the Energy Independence and Security Act into la w. The President noted that when he endorsed the Energy Policy Act two years ear lier, he understood “we needed to go17 even further.” Statement by President Ge orge W. Bush Upon Signing H.R. 6 (Dec. 19, 2007), reprinted in 2007 U.S.C.C.A.N. S25. He said the Energy Independence and Security Act was “a major step to ward reducing our dependence on oil, confronting global climate ch ange, expanding the producti on of renewable fuels and giving future generations of our country a nation that is stronge r, cleaner and more
secure.” Id. He declared that “[t]he bill I si gn today takes a significant step because it will require fuel producers to use at least 36 billion gall ons of biofuel in 2022. This is nearly a fivefold in crease over current levels. It will help us diversify our energy supplies and reduce our dependence on o il. It’s an important part of this legislation, and I thank the member s of Congress for your wisdom.” Id. at S26.
B. R EGULATIONS AND POST

- ENACTMENT HISTORY The EPA has issued a number of regulati ons to implement the renewable fuels program. Although the statut e refers to “refineries, blenders, and importers” in connection with yearly percentage volume requirements, 42 U.S.C. § 7545(o)(3)(B)(ii), the EPA confines “obligated parties” to refine rs and importers. 40 C.F.R. § 80.1406(a)(1). The EPA has publis hed the equations used to calculate the annual renewable fuel pe rcentage standards, id. § 80.1405(c), along with the formulas used to determine individual Renewable Volu me Obligations (“RVOs”) as to the four categories of renewable fuels. Id. § 80.1407(a). In general, an RVO for an obligated party is determined by applying an annual percentage requirement to the amount of non-renewable fuel produced or imported by th at party, and then adding any deficit carryover from the previous year. Id.18 The EPA administers credits usi ng a device known as a Renewable Identification Number (“RIN”). Id. § 80.1401. The regulati ons describe how RINs are generated and assigned to batches of renewable fuel by producers and importers. Id. § 80.1426. Each party required to meet an RVO must demonstrate that it has “retired for compliance purposes” a sufficient number of RINs. Id. § 80.1427(a)(1). This involves “separating” RINs by ble nding the renewable fuel with petroleumbased fuel, id. § 80.1429, at which point the RINs may be “transferred any number of times.” Id. § 80.1428(b)(3). RINs created by bl ending or purchase typically may only be used to demonstrate compliance “forthe calendar year in which they were generated or the following calendar year.” Id. § 80.1427(a)(6)(i). RINs used to show compliance in one year usually “cannot be used to demonstrate compliance in any other year.” Id. § 80.1427(a)(6)(ii). A RIN is c onsidered “expired” if not used during the year of its creation or the y ear after, and “an expired RIN will be considered an invalid RIN and cannot be used for compliance purposes.” Id. § 80.1428(c). The EPA has regulations pertaining to th e small refinery exemption as well. The regulations recognized an exemption in 2010 for each enti ty that met “the definition of small refinery” for “calendar year 2006.” Id. § 80.1441(a)(1). The regulations stated that this exemption “shall be extended” for at least two years if a DOE study determined compliance w ould impose disproportionate economic hardship. Id. § 80.1441(e)(1). The regulations i ndicate that a small refinery may petition for “an extension” of the exempti on “at any time,” and that such a petition19 must “specify the factors th at demonstrate a disproporti onate economic hardship;” provide a detailed discussion regarding “the hardship the refine ry would face in producing” compliant tran sportation fuel; and identif y “the date the refiner anticipates that comp liance with the requirements can reasonably be achieved[.]” Id. § 80.1441(e)(2)(i). In 2014, the EPA am ended the regulations to change the definition of a small refinery (t he “2014 Small Refinery Rule”): In order to qualify for an extension of its small refinery exemption, a refinery must meet the definition of “small refinery” in § 80.1401 for the most recent full cale ndar year prior to seeking an extension and must be projected to meet the definition of “small refinery” in § 80.1401 for the year or years for wh ich an exemption is sought . Failure to meet the definition of small refinery for any calendar year for which an exemption was granted would invalidat e the exemption for that calendar year. Id. § 80.1441(e)(2)(iii). At least since 2010, see id. § 80.1405(a), the EPA has published lengthy documents setting yearly renewable fuel standards and explaining how the program works. These documents acknowledge that the program originated with the Energy Policy Act and was modified by the Ener gy Independence and Security Act. E.g., Renewable Fuel Standard Program: Sta ndards for 2018 and Biomass-Based Diesel Volume for 2019 (“EPA 2018 Standards”), 82 Fed. Reg. 58,486, 58,487 (Dec. 12, 2017). They also acknowledge that the st ated goals of the Energy Independence and Security Act included moving the country toward “greater energy independence and security [and] to incr ease the production of clean renewable fuels.” Id. (brackets in original). “The fundamental objective of the RFS provisions under the CAA is clear:20 To increase the use of renewable fuels in the U.S. transportation system every year through at least 2022 in or der to reduce greenhouse ga ses (GHGs) and increase energy security.” Renewable Fuel Sta ndard Program: Standa rds for 2014, 2015 and 2016 and Biomass-Base d Diesel Volume for 2017 (“EP A 2014-2016 Standards”), 80 Fed. Reg. 77,420, 77 ,421 (Dec. 14, 2015). The EPA in recent years has announced volume requirements that are “lower than the statutory targets,” but the agency contends these targ ets “nevertheless will ensure these renewable fuels wi ll continue to play a critical role as a complement to our petroleum-based fuels.” EPA 2018 Sta ndards, 82 Fed. Reg. at 58,487. Starting no later than 2015, for instan ce, the EPA indicated that “challenges have made the volume targets established by Congress for 2014, 2015, and 2016 beyond reach.” EPA 2014-2016 Standards, 80 Fed. Reg. at 77,422. The EPA thus decided to apply “the tools Congress provided to make adjust ments to the statutory volume targets in recognition of the constrai nts that exist today,” 2while at the same time retaining standards sufficient to “drive growth in renewable fuel s, particularly advanced biofuels which achieve the lowe st lifecycle GHG emissions.” Id. at 77,423; see also Renewable Fuel Standard Program: Sta ndards for 2017 and Biomass-Based Diesel

2The statute contains several qualif ications and waiver provisions. See, e.g., 42 U.S.C. § 7545(o)(2)(B)(ii) (describing factors to be analyzed when setting renewable fuel volumes); id. § 7545(o)(4) (identifying circumstances where greenhouse gas reduction percen tages may be adjusted); id. §§ 7545(o)(7)(A)–(C), (F) (allowing waivers based on severe harmto the economy or environment, or on inadequate domestic supply); id. §§ 7545(o)(7)(D)–(E) (setting forth conditions under which volumes of cellulo sic biofuel and biomass-base d diesel must or may be reduced).21 Volume for 2018, 81 Fed. Reg. 89,746, 89 ,747 (Dec. 12, 2016) (“The standards we are setting are designed to achieve the Congressional inte nt of increasing renewable fuel use over time in order to reduce lifec ycle GHG emissions of transportation fuels and increase energy security, while at th e same time accoun ting for real-world challenges that have slowed pr ogress toward these goals.”). The EPA’s stated aim in harmonizing real -world constraints with aggressive statutory renewable fuel targ ets is to maintain the RFS program “as a market forcing policy.” EPA 2014-2016 Standards, 80 Fed. Reg. at 77,423. In the EPA’s words, “[t]he objective of the program is to introduce increasing vol umes of renewable fuels, with a focus on cellulosic and other advanced renewable fuels, in to the marketplace. Congress made the decision thatthis is an appropriate policy objective, and put in place a program to achiev e that policy goal.” Id. ; see also id. (“The fact that Congress chose to mandate increasing and substantial amounts of renewable fuel clearly signals that it in tended the RFS program to cr eate incentives to increase renewable fuel supplies and overcome constraints in the market.”). The EPA has observed that (1) “Congress set targets that envisioned growth at a pace that far exceeded historical growth a nd prioritized that growth as occurring principally in advanced biofuels;” and (2) “[i]t is appa rent, therefore, that Congress intended changes to the extent and pace of growth of renewable fuel use that would be unlikely to occur absentthe new program.” Id. at 77,432. The EPA has also reviewed how overall ta rgets are translated into individual compliance requirements for obligated parties. According to the EPA:22 Under the RFS program, EPA is required to determine and publish annual percentage standards for each compliance year. The percentage standards are calculated to ensure use in transportation fuel of the national “applicable volumes” of the f our types of biofuels (cellulosic biofuel, BBD, advanced biofuel, and total renewable fuel) that are set forth in the statute or established by EPA in accordance with the Act’s requirements. The percentage sta ndards are used by obligated parties (generally, producers and importers of gasoline and diesel fuel) to calculate their individual compliance obligations. Each of the four percentage standards is applied to the volume of non-renewable gasoline and diesel that each obligated pa rty produces or imports during the specified calendar year to determin e their individual volume obligations with respect to the four renewable fuel types. The individual volume obligations determine the number of Renewable Identification Numbers (RINs) of each renewable fuel type that each obligated party must acquire and retire to demonstrate compliance. EPA 2018 Standards, 82 Fed. Reg. at 58, 488. The EPA maintains that “[t]he percentage standards are set so that if every obligated party meets the percentages by acquiring and retiring the appr opriate number of RINs, then the amount of renewable fuel, cellulosic biofuel, BBD, and advanced biofuel used will meet the applicable volume requirements on a nationwide basis.” Id. at 58,522. As to small refineries, the EPA’s st andard-setting documen ts confirm that “Congress provided a temporary exemption” which could be extended beyond 2010 “based either on the resu lts of a required DOE st udy, or based on an EPA determination of ‘dispropor tionate economic hardship’ on a case-by-case basis in response to small refinery pe titions.” EPA 2018 Standards, 82 Fed. Reg. at 58,523; see also Regulation of Fuels and Fuel Additiv es: 2013 Renewable Fuel Standards (“EPA 2013 Standards”), 78 Fed. Reg. 49,794, 49,821 (Aug. 15, 2013) (“Congress provided two ways that small refineries can receive a temporary extension of the23 exemption beyond 2010.”). As stated by the EPA, Congre ss “spoke directly to the relief that EPA may provide fo r small refineries,” and “limit ed that relief to a blanket exemption through December 31, 2010, with additional extensions if the criteria specified by Congress are met. ” Regulation of Fuels and Fuel Additives: Changes to Renewable Fuel Standard Program, 75 Fed. Reg. 14,670, 14,736 (Mar. 26, 2010). The DOE issued a small refinery study in 2009. The study “did not find that small refineries would face a dispropor tionate economic hardship under the RFS program.” Regulation of Fu els and Fuel Additives: 2012 Renewable Fuel Standards (“EPA 2012 Standards”), 77 Fed. Reg. 1,320, 1,339 (Jan. 9, 2012) (footnote omitted). The EPA understood that the conclusions of the 2009 DOE study “were based in part on the expected robust availab ility of RINs and EPA’s ab ility to grant relief on a case-by-case basis.” Id. at 1,339–40. The EPA explaine d that as a result of the 2009 study, “beginning in 2011 small refiners and small refineries were required to participate in the RFS program as oblig ated parties,” and “there was no small refiner/refinery volume adju stment to the 2011 standard as there was for the 2010 standard.” Id. at 1,340. A report from the Senate Committee on Appropriations criticized the DOE’s 2009 study. The report stated that “[t] he Committee understands the study contained inadequate small refinery input, did not as sess the economic c ondition of the small refining sector, take into account regional factors oraccurately project RFS compliance costs.” S. Rep. No. 111-45, at 109 (2009). The Committee generally directed the DOE to “reopen and reassess the Small Refineries Exemption Study,”24 and specifically directed the DOE to “seek and invite comm ent from small refineries on the RFS exemption hardship question, assess RFS compliance impacts on small refinery utilization rates and profitability, evaluate the financial health and ability of small refineries to meet R FS requirements, study small re finery impacts and regional dynamics by [Petroleum Admi nistration for Defense Distri ct, or] PADD, and reassess the accuracy of small refinery complian ce costs through the purchase of renewable fuel credits.” Id. (brackets added). A House conf erence report added that “[t]he conferees support the study requested by the Senate on RFS and expect the Department to undertake the requested economic review.” H.R. Re p. No. 111-278, at 126 (2009). The DOE issued a revised small refinery study in 2011. The EPA in 2012 wrote that “DOE recently re-evaluated the impacts of the RFS program on small entities and concluded that 21 small refineries would suffer a disproportionate hardship if required to particip ate in the program. As a resu lt, these refineries will be exempt from being obligated parties for a minimum of two add itional years, 2011 and 2012.” EPA 2012 Standards, 77 Fed. Reg. at 49,821 (foot notes omitted). The EPA currently says on its website that “[f]or 2011 and 2012, 24 small refineries were granted an exemption” under 42 U.S.C. § 7545(o)(9)(A)(ii). See RFS Small Refinery Exemptions, https://www.ep a.gov/fuels-registration -reporting-and-compliancehelp/rfs-small-refinery-exemptions (“Small Refinery Exemptions, EPA Website,” last visited January 17, 2020). The EPA cite s the 2019 data from this website with approval in its appellate brief. EPA Respondent’s Br. at 12 n.1.25 As directed, one of the steps the DOE took to revisit the issue of disproportionate economic hardship was to su rvey small refineries. Small Refinery Exemption Study: An Investigation into Di sproportionate Econom ic Hardship (“2011 DOE Study”), U.S. Department of Energy (Mar. 2011, redacted), Administrative Record volume 1 (“REC1”) at 483, 489–90. With those survey re sults in hand, the DOE concluded that “[d]is proportionate economic hardsh ip must encompass two broad components: a high cost of compliance relative to the industr y average, and an effect sufficient to cause a significant impairment of the refinery operations.” Id. at 495. The DOE created scoring matrixes to reflect these two categories. Id. at 495, 523–28. The first matrix contains scori ng for “Disproportionate Structural Impact Metrics” (with categories fo r access to capital/ credit, other business lines besides refining and marketing, local market acceptance of renewabl es, percentage of diesel production, and exceptional state regul ations) and “Dispr oportionate Economic Impact Metrics” (with categor ies for relative refining marg in measure, renewable fuel blending as a percentage of production, operation in a niche market, and RINs net revenue or cost). Id. at 525–27. The second matrix c ontains scoring for “Viability Metrics” (with categories for compliance costs elimin ating efficiency gains, individual special events, and compliance cost s being likely to lead to a shutdown). Id. at 528; see also Addendum to the Small Refinery Exemption Study: An Investigation into Disproportionate Economic Hardship, U.S. Department of Energy (May 2014), REC1 at 583–85 (explaining scoring changes with respect to the viability matrix).26 In late 2015, Congress provided an explanatory statement on the 2016 Consolidated Appropriations Act concerning the DOE’s scoring system. Noting that the DOE’s 2011 study set forth “two br oad components” fo r disproportionate economic hardship – “a high cost of comp liance relative to the industry average disproportionate impacts” and “an effect sufficient to cause significant impairment of the refinery operations viability” – the expl anatory statement provided that if the Secretary of Energy “finds th at either of thes e two components exists, the Secretary is directed to recommend to the EPA Administrator a 50 percent waiver of RFS requirements for the petitioner.” 161 Cong. R ec. H9693, H10105 (daily ed. Dec. 17, 2015). The explanatory statement further pr ovided that a small refinery with profits sufficient to cover RFS compliance cost s might nonetheless be subject to a disproportionate economic hardship: [T]he dramatic rise in RIN prices has amplif ied RFS compliance and competitive disparities, es pecially where unique regional factors exist, including high diesel demand, no e xport access, and limited biodiesel infrastructure and production. In response to recent petitions, the Secretary determined that th e RFS program would impose a disproportionate economic and stru ctural impact on several small refineries. Despite this determ ination, the Secretary did not recommend, and EPA di d not provide, any RFS relief because it determined the refineries were prof itable enough to afford the cost of RFS compliance without substantially impacting their viability. The Secretary is reminded that the RFS program may impose a disproportionate economic hardship on a small refinery even if the refinery makes enough pr ofit to cover the cost of complying with the program. Small refinery profitability does not justify a disproportionate regulatory burden where Congress has explicitly given EPA authority, in consultation with the Secretary, to reduce or eliminate this burden. Id.27 A 2016 Senate report on appr opriations for various agen cies contained similar observations. The Senate re port commented that “[i]n response to several recent petitions,” the EPA had “determined that compliance with the RFS would have a disproportionate economic impact on a small refinery, but denied hardship relief because the small refinery remained profitable notwithst anding the disproportionate economic impact.” S. Rep. No. 114-281, at 70 (2016). The report indicated that “[t]his is inconsistent w ith congressional intent b ecause the statute does not contemplate that a small refinery would only be able to obtain an exemption by showing that the RFS program threatens it s viability. Congress e xplicitly authorized the Agency to grant small refi nery hardship reli ef to ensure that small refineries remain both competitive and profitable.” Id. ; see also id. (intimating that “small entities cannot remain competitive and profitable if they face disproportionate structural or economic metrics such as limitations on access to capital, lack of other business lines, disproportionate production of diesel fuel, or other site specific factors”). In a separate explanator y statement on an agreement regarding appropriations amendments, the House echoed that “[t] he agreement includes the directive contained in Senate Report 114-2 81 related to small refinery relief.” 163 Cong. Rec. H3327, H3884 (daily ed. May 3, 2017) (statement of Rep. Frelinghuysen). Beginning in 2016, the EPA began granti ng more petitions to extend the small refinery exemption. Table 2 on the EPA’s website indicat es that while the agency granted 23 of 41 extension petitions from 2013- 2015 (reflecting an approval rate of28 approximately 56%, as two pe titions were declared ine ligible or withdrawn), the agency granted 85 of 94 extension petiti ons from 2016-2018 (reflecting an approval rate of approximately 90%, as five petitions were declared inelig ible or withdrawn):

Compliance Year Number of Petitions Received Number of Grants Issued Number of Denials Issued Number of Petitions Declared Ineligible Number of Petitions Withdrawn Number of Pending Petitions
2013 16 8 7 0 1 0 2014 13 8 5 0 0 0 2015 14 7 6 1 0 0 2016 20 19 1 0 0 0 2017 37 35 1 0 1 0 2018 42 31 6 2 3 0 2019 21 0 0 0 0 21 Small Refinery Exemptions, EPA Webs ite (data as of January 16, 2020); see also Renewable Fuel Standard Program: Sta ndards for 2019 and Biomass-Based Diesel Volume for 2020 (“EPA 2019 Standards”), 83 Fed. Reg. 63,704, 63,707 (Dec. 11, 2018) (stating that in respons e to comments suggesting incr eased disclosure of “data related to the RIN market,” the EPA “mad e additional information available through our public website,” includi ng “the number of small re finery exemption petitions received, granted, and denied by year”). The EPA granted 19 of 20 small refinery extension petitions in 2016, 35 of 36 eligible and maintained petitions in 2017, and 31 of 37 eligible and maintained petitions in 2018. Small Refinery Exemptions, EPA Website. As the number of granted petitions began to rise, so too did the amount of fuel exempted from the am ended Clean Air Act’s renewable fuels targets. Table 1 on the29 EPA’s website reveals not only that exempted volumes of gasoline and diesel went from approximately 2 billion gallons in 2013 to a peak of 17 billion gallons in 2017 (with more than 13 billion exempted gallons in 2018), but also that exempted RVOs went from approximately 190 million RINs in 2013 to an apex of 1.8 billion RINs in 2017 (with more than 1.4 b illion exempted RINs in 2018):
Compliance Year Estimated Volumes of Gasoline and Diesel Exem pted (million gallons) Estimated Renewable Volume Obligations (RVO) Exempted (million RINs) 2013 1,980 190 2014 2,300 210 2015 3,070 290 2016 7,840 790 2017 17,050 1,820 2018 13,420 1,430 2019 0 0 Id. (rounded to the nearest 10 million gallons or RINs). If any small refinery petitions to exte nd the temporary exemption are granted after the announcement of the applicable percentage standards for a given year, the EPA does not modify the standards to ac count for the exemptions. The EPA has followed this policy at least from 2011 throu gh 2018, reasoning that “the Act is best interpreted to require issuance of a singl e annual standard in November that is applicable in the following calendar year , thereby providing advance notice and certainty to obligated parties regarding th eir regulatory requireme nts.” Regulation of Fuels and Fuel Additives: 2011 Renewable Fu el Standards (“EPA 2011 Standards”), 75 Fed. Reg. 76,790, 76,804 (Dec. 9, 2010). The EPA says that “[ p]eriodic revisions to the standards to reflect wa ivers issued to small refine ries or refiners would be30 inconsistent with the statutory text, a nd would introduce an undesirable level of uncertainty for oblig ated parties.” Id. ; see also EPA 2018 Standards, 82 Fed. Reg. at 58,523 (“EPA is maintaining its approach that any exem ptions for 2018 that are granted after the final rule is released will not be reflecte d in the percentage standards that apply to all gasoline and diesel produced or imported in 2018.”). The EPA recognizes that “any exemption for a smal l refinery will result in a proportionally higher percentage standard for remaining oblig ated parties,” and th at “this will affect the degree to which individual obligated pa rties can acquire su fficient RINs for compliance through blending ethanol into gasoline that they produce.” EPA 2011 Standards, 75 Fed. Reg. at 76,805. C. T HE EXEMPTION EXTENSION PETITIONS The EPA is required to consider DOE st udies and other economic factors when assessing small refinery pe titions. 42 U.S.C. § 7545(o)(9 )(B)(ii). Operating within this framework, the EPA recei ved and evaluated the three extension petitions at issue in this case. HollyFron tier Cheyenne Refining LLC (“Cheyenne”) submitted a petition in March 2017. Administrative Re cord volume 2 (“REC2”) at 589–610. HollyFrontier Woods Cross Refining LLC (“ Woods Cross”) submitted a petition in September 2017. Id. at 648–63. Wynnewood Refining Company, LLC (“Wynnewood”) submitted a petition in January 2018. Id. at 686–731. The petitions for these three refineries (“ the Refineries”) ar e discussed in more detail below. As a prelude, we describe how info rmation identified by the parties as confidential has been handled. As noted infra in § II, the Refineries requested31 confidentiality when they submitted their exte nsion petitions to the EPA. The parties continued on appeal to seek confidential tr eatment of certain bus iness information. In a series of orders, this court provisionally granted the parties’ request for a protective order, along with the parties’ requests to file pa rticular briefs and record materials under seal. In each of those orders, the court e xplained that it retained discretion to revisit the issu es. At the court’s promp ting, the Refineries later indicated whether they objected to the di sclosure of several specific facts. The court is honoring most – but not a ll – of the Refineries’ confidentiality objections. The court is also maintaining the confidential status of any previouslysealed document. The court has kept in mind 5 U.S.C. § 552(b)(4), which contains a disclosure exemption for priv ileged or confidential “trade secrets and commercial or financial information,” as we ll as 40 C.F.R. § 2.208, wh ich states that “business information is entitled to confidential treatment” if vari ous requirements are met. Any instance in this opinion in which th e court parts company with the parties on confidentiality is based both on these st andards and on the “strong presumption” under the common law “in fa vor of public access.” United States v. Pickard , 733 F.3d 1297, 1302 (10th Cir. 2013) (citation omitted); see also Colony Ins. Co. v. Burke , 698 F.3d 1222, 1241 (10th Cir. 2012) (commenting that this presumption “may be overcome where countervaili ng interests heavily outweigh the public interests in access”) (citation and in ternal quotation marks omitted).32 1. C HEYENNE According to the petition submitted on behalf of Cheyenne in 2017, the refinery employs appr oximately 300 people in Wyoming. REC2 at 590. Because it was identified in the DOE’s 2011 study as being subj ect to disproportionate economic hardship, Cheyenne was granted an extension of the small refinery exemption through 2012. Id. Cheyenne did not apply for or did not receive an extension of the exemption in 2013 and 2014. Id. at 638 n.13. Cheyenne applied to extend the exemption in 2015, but the EPA denied the petition. Id. at 590, 638 n.13. On appeal, this court gran ted an unopposed motion by th e EPA to vacate the denial and remand the matter to th e agency for further pro ceedings consistent with Sinclair Wyo. Refining Co. v. EPA , 874 F.3d 1159 (10th Cir. 20 17). The parties have not discussed the subsequent pr oceedings, but we assume fo r purposes of this opinion that Cheyenne’s 2015 petiti on was granted on remand. See infra § II (summarizing post- Sinclair events in the contex t of redressability). Cheyenne contended in its 2017 petition that renewable fuel compliance in 2016 would impose disproporti onate economic hardship. Cheyenne emphasized that it focused on diesel (normally blended with less renewable fuel than gasoline) and otherwise had limited blendi ng abilities, in contrast to some “larger, more competitive refineries.” RE C2 at 592–93. Cheyenne argue d that “[t]he cost of RIN purchases and the poor economic s of biodiesel blending thr eaten the viability of the Cheyenne refinery[.]” Id. at 593. Cheyenne describe d the expenses it believed would arise out of RFS compliance in 2016, consisting of ble nding costs and RIN33 purchase costs. Id. at 593, 596. Cheyenne averred that it had no other business lines besides refining and marketing, that it had an operating loss and an asset impairment in 2016, that it had relatively thin margins over the past three years, and that it did not operate in a niche market. Id. at 595–97. The DOE applied its scoring criteriaand recommended denying Cheyenne’s request for an extension of the small refinery exemption in 2016. Id. at 627–28. The DOE gave Cheyenne “a score of 0.9 in th e structural and eco nomic metric and a score of 0.0 in the viability metric.” Id. at 628. The DOE concluded that “the HollyFrontier Cheyenne refinery had positi ve refining margins and RFS compliance would not appear, based on the data we anal yzed, to threaten th e refinery’s economic viability.” Id. The EPA declined to follow the DOE’s recommendation and granted Cheyenne’s petition. Id. at 614, 629–46. The EPA ack nowledged that “it has been found that a refinery does not experience disproportionate economic hardship simply because it may need to purchase a significan t percentage of its RINs for compliance from other parties, even t hough RIN prices have increa sed since the DOE study, because the RIN prices lead to higher sa les prices obtained for the refineries’ blendstock, resulting in no net cost of compliance for the refinery.” Id. at 634 n.5 (emphasis in original). The EPA also acknowledged that the DOE did not find “disproportionate economic and structural impacts and th e Cheyenne Refinery.” Id. at 645. After summarizing Cheye nne’s financial history, however, id. at 637–42, the EPA determined that the refinery “would su ffer a disproportionate economic hardship34 if it had to comply with the RFS oblig ations for 2016 and should be granted full relief.” Id. at 646. In granting the petition, the EPA reas oned that “for a refinery like the Cheyenne Refinery, its dispr oportionate economic hardship may be the result of other economic factors, including a difficult year for the industry as a whole.” Id. at 645. The EPA found that Cheyenne’s financia l performance showed the refinery would disproportionately suffer “from comp liance with RFS obligations.” Id. The EPA discussed Cheyenne’s financial performan ce in 2016, Cheyenne’s cash flow from 2014-2016, Cheyenne’s net refining margin in 2016, and Cheyenne’s three-year average net refining margin. Id. at 640, 645. In the process of adjudicating Cheye nne’s petition, the EPA acknowledged it was generally altering its met hodology. The agency stated “[i]n prior decisions, EPA considered that a small refinery could no t show disproportionate economic hardship without showing an effect on ‘viability,’ but we are changing our approach.” Id. at 636 n.10. The agency explained that “[w] hile a showing of a significant impairment of refinery operations ma y help establish dispropor tionate economic hardship, compliance with RFS obligations may impos e a disproportionate economic hardship when it is disproportionately difficult for a refinery to comply with its RFS obligations – even if the refinery’s opera tions are not significantly impaired.” Id. at 636 n.10, 646 n.41.35 2. W OODS C ROSS The 2017 petition submitted on behalf of Woods Cross st ated that the refinery has 285 employees and 70 full-time contractors in Utah. Id. at 648–49. The petition asserted neither that Woods Cross was identified as being subject to disproportionate economic hardship in the DOE’s 2011 study, nor that Woods Cross previously sought or received other extensions of the small refinery exemption. Id. at 648–53. Woods Cross declared that comp liance with RFS in 2016 wo uld impose disproportionate economic hardship because th e refinery has no other li nes of business and cannot blend the full amount of required renewabl e fuel, because “there is still some resistance to the acc eptance of biodiesel” in Wood s Cross’s market, and because buying RINs “adds a heavy financial burden to the re finery and renders it economically inefficient rela tive to its competition.” Id. at 649–52. Woods Cross described what it believed its complian ce costs for 2016 would be, tallying up RIN purchases and blending costs. Id. at 652. The DOE recommended granting Woods Cross’s petition in part. Id. at 678– 79. The DOE gave Woods Cross “a score of 1.9 in the stru ctural and economic metric and a score of 0.0 in the viability metric.” Id. at 679. The DOE found that Woods Cross “did not have negative re fining margins while making significant refinery investments, thus RFS compliance would not appear, based on the data we analyzed, to threaten the refi nery’s economic viability.” Id. Because Woods Cross scored above 1.0 in the first metric, th e DOE suggested that EPA consider a “50 percent exemption from the 2016 RFS[.]” Id.36 The EPA granted Woods Cross’s petition and awarded a full extension of the small refinery exemption, rather than a partial exte nsion of the exemption. Id. at 665, 680–85. The EPA noted this court held in Sinclair that the agency’s previous viability requirement for “disproportionate economic hardship” was “at odds with Congress’s statutory command.” Id. at 681–82 (citation omitted); see also Sinclair , 887 F.3d at 988 (“[T]he EPA has exceeded its statutory authority under the CAA in interpreting the hardship exemption to require a threat to a refinery ’s survival as an ongoing operation.”). The ag ency recounted, however, that “prior to this ruling, EPA had already changed its appro ach for the 2016 small refinery petitions issued in May 2017.” REC2 at 682. The agency clarifie d that it had determ ined disproportionate economic hardship “can exist on the basis of adverse stru ctural conditions alone. A difficult year for the refining industry as a whole may exacerba te economic problems for small refineries that face disproportionate impacts.” Id. ; see also id. (stating that the “industry-wide downward trend” of lo wer net refining marg ins “can result in tangible effects on small refineries w ith adverse structural conditions”). The EPA concluded that in combinati on with other factors, unfavorable structural conditions for Woods Cr oss warranted “100% relief.” Id. at 682, 684. The EPA drew attention to limitations on th e refinery’s blending capabilities, and addressed Woods Cross’s net refining margin s and financial performance in 2015 and
2016. Id. at 684. This analysis led the EP A to decide that “the Woods Cross Refinery will experience [dispr oportionate economic hardship] that can be relieved in whole or in part by removing its RFS obligations for 2016.” Id. (brackets added).37 3. W YNNEWOOD The petition submitted on behalf of W ynnewood in 2018 described that refinery as having more than 300 employees and more than 250 full-time contractors in Oklahoma. Id. at 688. The petition stated thatWynnewood received an extension of the blanket exemption in 2011 and 2012, but “has not received hardship relief since 2012.” Id. at 687. Wynnewood described wh at it believed RFS compliance costs would be, and compared those costs to the refinery’s othe r operating expenses. Id. at 688–89, 694. In light of the re finery’s financial performance in 2017, Wynnewood claimed the RFS compliance costs would impose disproportionate economic hardship. Id. at 689. The Wynnewood petition addressed all of the factors in the DOE’s scoring matrixes. As to structural and economic factors, Wynnewood presented arguments concerning (1) access to capital or credit; (2) other line s of business; (3) the market for the relevant blended renewable fuels; (4 ) the refinery’s proportion of diesel fuel; (5) the refinery’s net refining margins in 2015 and 2016, along with a three-year average margin; (6) th e presence or absence of a nich e market; and (7) the possibility of “passing through” RIN e xpenses to customers. Id. at 689–96. As to viability, Wynnewood again referenced th e metric of average net re fining margin, and gave the EPA an assessment of compet itiveness and profitability. Id. at 696. Similar to Woods Cross, the DOE recommended “a 50 percent exemption from the 2017 RFS” for Wynnewood. Id. at 736. The DOE scored Wynnewood on structural, economic, a nd viability metrics. Id. The DOE stated that “the refinery38 has positive refining margins and RFS comp liance would not appear, based on the data we analyzed, to threaten th e refinery’s econom ic viability.” Id. Nonetheless, based on structural and econom ic factors, the DOE suggested that the EPA grant a partial extension of the sm all refinery exemption. Id. The EPA granted Wynnewood’s petition and fully extended the exemption for
2017. Id. at 733, 737–41. The EPA explained that “[i]n previous year decisions, DOE and EPA considered that [dispropor tionate economic hardship] exists only when a refinery experiences both disproporti onate impacts and viability impairment.” Id. at 738 (brackets added). The EPA continue d that in response to concerns that the threshold for establishing disproportionate economic hardship was “too stringent,” Congress clarified that such ha rdship “can exist if DOE finds that a small refinery is experiencing either disproportionate impacts or viability impairment.” Id. (emphasis in original). Once again, the EPA stated that hardship “can exist on the basis of adverse structural conditions alone,” and a difficult year “may exacerbate economic problems for small refineries that face disproportionate impacts[.]” Id. at 738–39. The EPA thus decided that unfavorable structural conditions and other factors justified “100% relief” for Wynnewood. Id. at 739–41. The EPA focused on Wynnewood’s financial performance in 2016 and the first three quarters of 2017, coupled with Wynnewood’s net refining margins. Id. at 741. The EPA concluded by stating that Wynnewood would experience disproportionate economic hardship which “can be relieved in whole or in part by removing its RFS oblig ations for 2017.” Id.
II. T HE B IOFUELS C OALITION ’ S STANDING TO SUE39 Although the EPA does not challenge the Biofuels Coalition’s standing to sue, the Refineries do. Addressing those argum ents requires an understanding of the four organizations that make up the Biofuels Coalition. The first organization is the Renewable Fuels Association (“RFA”), a trad e association for the ethanol industry. Geoff Cooper Declaration (“Cooper Decl.”) ¶ 2. RFA members include “companies that manufacture and market ethanol fuel to blenders and marketers of gasoline, as well as companies that provide goods and services (such as process technologies and raw feedstocks) to ethanol producers.” Id. Through its President and Chief Executive Officer, RFA avers that its members “operate facilities in 24 states, from California to New York, and ar e responsible for the produc tion of almost a third of the ethanol sold in the United States.” Id. ¶¶ 2–3. The second organization is the American Coalition for Ethanol (“ACE”), another ethanol advocacy group. Brian Jennings Declaration (“Jennings Decl.”) ¶ 2. It also counts as members both producers and other companies that support the industry. Id. ¶ 2 & Ex. A. Through its Chief Executive Officer, th e organization attests that “[m]any of ACE’s members” produce ethanol, and “[o]ther members grow crops, primarily corn, that are used in the production of renewable fuels.” Id. ¶¶ 7–8. The other two Biofuels Coalition member s are similar, but even more focused on feedstocks. The third organization is the National Farmers Union (“NFU”), an advocacy group for “family farmers, ranc hers and rural communities[.]” Roger Johnson Declaration (“Johnson Decl.”) ¶ 2. According to the group’s President,40 “NFU’s members include family farmers a nd growers of crops such as corn and soybeans[.]” Id. ¶¶ 2–4. NFU further declares that “[c]orn is used to produce most of the non-advanced portion of renewable fuels (conventional renewable fuel), and soybeans are used to produ ce biomass-based diesel.” Id. ¶ 5. The fourth organization is the National Corn Grower s Association (“NCGA”). NCGA’s Chief Executive Officer declar es that the association “rep resents more than 40,000 duespaying corn farmers nationwide and more th an 300,000 corn growers who contribute to NCGA through the corn programs (known as ‘checkoff’ programs) in their states.” Jon Doggett Declaration (“Doggett Decl.”) ¶¶ 1–3, 5. NCGA reitera tes that “[c]orn is used as a feedstock to make ethanol[.]” Id. ¶ 6. The Constitution specifies that the “judicial Powe r of the United States” extends only to “Cases” and “Controversies.” U.S. Const. art. I II, §§ 1–2. Standing to sue “is a doctrine rooted in the traditional understanding” of those terms. Spokeo, Inc. v. Robins , 136 S. Ct. 1540, 1547 (2016). The doc trine “requires federal courts to satisfy themselves that the plaintiff has alleged such a personal stake in the outcome of the controversy so as to warrant his invocation of federal-court jurisdiction.” Summers v. Earth Island Inst. , 555 U.S. 488, 493 (2009) (citation and internal quotation marks omitted, emphasis in original ). By limiting the category of litigants empowered to maintain a fede ral lawsuit, the law of Artic le III standing “serves to prevent the judicial process from being us ed to usurp the powers of the political branches, and confines the federal cour ts to a properly judicial role.” Spokeo , 136 S. Ct. at 1547 (citations and inte rnal quotation marks omitted).41 The “irreducible constitutional minimu m” of standing is threefold. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560 (1992). “T he plaintiff must have (1) suffered an injury in fact, (2 ) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be re dressed by a favorable judicial decision.” Spokeo , 136 S. Ct. at 1547. An injury in fact must be notonly “concrete and particularized,” but also “actual or im minent,” as opposed to “conjectural” or “hypothetical.” Lujan , 504 U.S. at 560 (citations and internal quotation marks omitted). “Although the ‘trac eability’ of a plaintiff’s harm to the defendant’s actions need not rise to the level of proximate cau sation, Article III does require proof of a substantial likelihood that th e defendant’s conduct caused the plaintiff’s injury in fact.” Habecker v. Town of Estes Park, Colo. , 518 F.3d 1217, 1225 (10th Cir. 2008) (citation and internal quotation marks omitted ). And “[t]o demonstrate redressability, a party must show that a fa vorable court judgment is like ly to relieve the party’s injury.” WildEarth Guardians v. P ub. Serv. Comm’n of Colo. , 690 F.3d 1174, 1182 (10th Cir. 2012) (citation omitted). “The party invoking federal jurisdicti on bears the burden of establishing” standing. Lujan , 504 U.S. at 561. Each element “m ust be supported in the same way as any other matter on which the pl aintiff bears the burden of proof, i.e. , with the manner and degree of evidence required at th e successive stages of the litigation.” Id. On a direct appeal from an admini strative decision, the complainant “must produce evidence on each element of standi ng as if it were moving for summary judgment in district court.” N. Laramie Range Alliance v. FERC , 733 F.3d 1030,42 1034 (10th Cir. 2013). If a counterparty cont ests these facts, th e complainant will not enjoy “the benefit of any inference” and must discharge its burden under a preponderance-of-the-evidence standard. Id. (citation omitted). The evidence must show that the complainant “had standing when it filed its petition for review.” Id. An association seeking to invoke federa l court jurisdiction mu st make a further showing. The association must demonstrat e that “its members would otherwise have standing to sue in their own right;” “the in terests it seeks to pr otect are germane to the organization’s purpose;” and “neither the claim asserted nor the relief requested requires the participation of indi vidual members in the lawsuit.” Hunt v. Wash. State Apple Advert. Comm’n , 432 U.S. 333, 343 (1977). Becau se the Refineries in this case do not challenge the latter two componen ts, we focus on the core elements of standing, keeping in mind that“the gist of the question” is whether members of the Biofuels Coalition “have such a personal stak e in the outcome of the controversy as to assure that concrete adverseness whic h sharpens the presentation of issues upon which the court so largely depends for illumination.” Massachusetts v. EPA , 549 U.S. 497, 517 (2007) (citat ion and internal quotation ma rks omitted). We also recognize that “when the plaintiff is not hi mself the object of the government action or inaction he challenges, st anding is not precluded, but it is ordinarily substantially more difficult to establish.” Summers , 555 U.S. at 494 (cit ation and internal quotation marks omitted). The Biofuels Coalition principally reli es on an affidavit and a report from RFA’s chief economist to prove standing. Scott Richman Declaration (“Richman43 Decl.”) ¶¶ 1–5. The economis t provides his estimation, in gallons, of total renewable fuel obligations for Cheyenne and Woods Cross in 2016 and Wynnewood in 2017. Id. ¶ 10. He then identifies, as a percentage, what the extensions granted to the Refineries represent in te rms of all exempted volum es. Scott Richman Report (“Richman Report”) at 3, 12–13, 17. He obs erves that the EPA reinstated the RINs Cheyenne and Woods Cross ha d previously retired for co mpliance purposes in 2016, and he appears to assume the agency simply relieved Wy nnewood of its RIN retirement obligation in 2017. Richman De cl. ¶¶ 12, 23. He then opines that the Refineries can “use these re instated RINs in many ways ,” including selling the RINs to other obligated parties or using the RINs to satisfy RVOs for other refineries owned by the same corporate parent. Id. ¶¶ 13, 23. He mainta ins that the Refineries’ sale or use of these RINs to establish co mpliance inflicts “economic harm” on members of the Biofuels Coa lition, because obligated partie s use such RINs “instead of blending ethanol or obt aining RINs representing a dditional blending from other parties.” Id. ¶¶ 9, 23. RFA’s economist bases this conclusion on an industry-wide analysis of the effects of the 48 small refinery exempti on extensions granted overall for 2016 and 2017, as well as the effects of the three exemption extensions at issue in this case. Id. ¶¶ 5, 18, 21. He observes that there ar e approximately 2.59 billion carryover RINs available to meet 2019 renewable fuel volume requirements, and he attributes most of these carryover RINs to the 48 extensions. Id. ¶ 15 & n.6 (citing an earlier publication of the EPA 2019 Standards, 83 Fed. Reg. at 63,709); Richman Report at 944 & n.10 (same). This, according to the economist, has “contri buted to reduced demand and lower per-gallon pric es for ethanol. These fact ors have resulted in lower revenues received by RFA’s ethanol produc ing members.” Ri chman Decl. ¶ 5; Richman Report at 1. In part icular, he states that extens ions in the aggregate have caused the ethanol “blend rate ,” or ethanol’s average inclusion in the nation’s gasoline supply, to fall by 162 million gallons from February 2018 to August 2018. Richman Decl. ¶ 16; Richman Report at 1, 9–11, 24–25. Valuing ethanol at $1.45 per gallon during this time period, he asserts that the drop in the bl end rate resulted in an estimated $233 million revenue reducti on for the industry and an estimated $68
million revenue reduction for RFA members. Richman Decl. ¶ 17; Richman Report at 16–17. For this same time period, he calculates estimated revenue reductions for the industry overall and for RFA members due to the Refineries’ extensions. Richman Decl. ¶ 18; Richman Report at 17. RFA’s economist claims thes e numbers are conservative . He reasons that the foregoing numbers understa te the economic injury to th e Biofuels Coalition because “the reduction in demand has forced RFA members and other producers to sell ethanol at lower prices than that whic h they would receive” had small refinery extensions not been granted. Richman Decl. ¶ 19; Richman Report at 17–19. He attests that ethanol prices would have b een $0.08 per gallon high er in February 2018 absent these extensions, and $0.34 per gallon higher by June 2018 “given the continued effect on consump tion[.]” Richman Decl. ¶ 20; Richman Report at 2–3, 19. “Without adjusting for any possible increase in producti on due to increased45 consumption that would have occurred” in the absence of the 48 small refinery extensions, he argues, from February to August 2018 the annualized impact on industry revenues was $4 billion and the annualized impact on RFA members’ revenues was $1.2 billion. Richman Report at 19–20. He closes by attributing a substantial amount of “unrealized value” across the industry – and a specific amount of “unrealized value” for RF A members – to the Refineri es’ exemptions. Richman Decl. ¶ 21; Richman Report at 3, 20–21. The Refineries do not meaningfully disput e that this eviden ce is sufficient to establish an injury in fact, the first prong of the test for Article III standing. “For standing purposes, a loss of even a small amountof money is ordinarily an ‘injury.’” Czyzewski v. Jevic Holding Corp. , 137 S. Ct. 973, 983 (2017); see also Carpenters Indus. Council v. Zinke , 854 F.3d 1, 5 (D.C. Cir. 2017) (“Economic harm to a business clearly constitutes an injury-in-fact. And the am ount is irrelevant. A dollar of economic harm is still an injury-in-fact for standing purposes.”). The financial losses claimed by the Biofuels Coalition fit th is description. The alleged losses are concrete in that they are qua ntified in dollars. The allege d losses are par ticularized in that they affect each Biofuels Coaliti on member who produces ethanol or ethanol feedstocks. Certain Biofuels Coalition members al so have cognizable injuries as competitors. Probable economic injury resulting from governmental actions which “alter competitive conditions” can c onstitute an injury in fact. Clinton v. City of
N.Y. , 524 U.S. 417, 432-33 (19 98) (citation omitted). Pu t another way, “economic46 actors suffer constitutional inju ry in fact when agencies lift regulatory restrictions on their competitors or otherwise allow increased competition.” Nat’l Biodiesel Bd. v.
EPA , 843 F.3d 1010, 1015 (D.C. Cir. 2016) (citation and internal quotation marks omitted); see also Citizens for Responsibility & Ethics in Washington v. Trump , 939 F.3d 131, 143 (2d Cir. 2019) (explaining that comp etitor standing “relies on economic logic to conclude th at a plaintiff will likely su ffer an injury-in-fact when the [defendant] acts in a wa y that increases competiti on or aids the plaintiff’s competitors”) (citation omitte d, brackets in original). The record reflects at le ast some degree of competiti on between the Refineries and certain members of the Biofuels Co alition. The former produce or market conventional fuels, and the latter produce or market alternative fuels. One of the goals of the RFS program is to replace crude oil with biofuel, see supra § I, and alternatives like ethanol displace the trad itional components of petroleum-based fuel. See, e.g., Declaration of Scott Mundt ¶ 5 (“RFS requires refiners to use specified volumes of renewable fuel, such as ethanol, to reduce the quantity of petroleumbased transportation fuel.”); 2011 DOE Study, REC1 at 504 (“ Ethanol serves to displace other blending components of ga soline.”); HollyFrontier Corporation 2015 Form 10-K at 27 (Feb. 24, 2016), REC1 at 41 (stating on behalf of the parent entity for Cheyenne and Woods Cross that “we co mpete with other indus tries that provide alternative means to satisf y the energy and fuel require ments of our industrial, commercial and individual cons umers,” and “[t]he more successful th ese alternatives become” the greater the impact on “p ricing and demand for our products and47 profitability”). The EPA’s decision to exte nd the small refinery exemption relieves the Refineries from having to pay for ble nding or RINs associated with renewable fuels, including the types of fuel gene rated by Biofuels Co alition members. See

supra § I.C.1-3. There is injury in fact. The Refineries dispute the second Artic le III standing requirement, namely, whether the losses claimed by the Biofuels Coalition are “fairly traceable” to the EPA’s decisions to grant the three petitions at issue. Cheyenne, Woods Cross, and Wynnewood each argue that ther e is no evidence showing any individualextension of the small refinery exemption harmed any individualBiofuels Coalition member. For example, Cheyenne and Woods Cross insi st that their exempt ed RINs constitute only a tiny fraction of the total RFS obligati on. The Refineries also contend that RFA’s economist did not analyze whether any one extension resulted in lower ethanol sales or prices for any one producer, and that RFA’s economist at best has identified correlation between (rather than proving causa tion for) ethanol demand and carryover RINs. These arguments are colora ble, but we conclude th at the “fairly traceable” requirement is satisfied. In Massachusetts , a coalition of States, local governments, and private organizations alleged that the EPA abdicated its resp onsibility to regulate certain greenhouse emissions from new motor vehicles under the Clean Air Act. 549 U.S. at 504. Although “[t]he harms associ ated with climate ch ange” were “serious and well recognized,” id. at 521, the EPA challenged the coalition’s standing to sue by asserting that any decision not to regulate emissions from new vehicles48 contributed “insignificantly to petitioners’ injuries,” a nd regulating said emissions would be a drop in the worldwide bucket and immaterial to mitigating “global climate change.” Id. at 521, 523–24. The Supreme C ourt did not accept this line of reasoning: The EPA overstates its case. It s argument rests on the erroneous assumption that a small incremental st ep, because it is incremental, can never be attacked in a federal ju dicial forum. Yet accepting that premise would doom most challenges to regulatory action. Agencies, like legislatures, do not generally re solve massive problems in one fell regulatory swoop. They instead whittle away at them over time, refining their preferred approach as circumstances change and as they develop a more nuanced understa nding of how best to proceed. Id. at 524 (citation omitted). Massachusetts thus held “[w]hile it may be true that regulating motor-vehicle em issions will not by itself reverse global warming, it by no means follows that we lack jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it.” Id. at 525 (emphasis in original); see also Consumer Data Indus. Ass’n v. King , 678 F.3d 898, 90 2 (10th Cir. 2012) (“[T]he Supreme Court concluded that Massachus etts had standing to challenge the EPA’s refusal to regulate greenhouse-gas emissions despite th e attenuated causal chain linking agency non-action to potential environmental damage.”). The causal chain linking the EPA’s gran ts of the Refineries’ extension petitions to potential economic damage to the Biofuels Coalition is no more attenuated. How much of an economic loss each Biofuels Coalition member may have sustained as a result of the EPA’s decision to grant a given refinery petition is certainly debatable, and the amount of any such loss may be impo ssible to precisely49 quantify. But the evidence pr esented is sufficient to show for standing purposes that Biofuels Coalition members who produce etha nol or feedstocks suffered some injury – even if each individual me mber’s loss is sm all – which is fairly traceable to increasing the number of unretired RINs. Pa ired with economic pr inciples suggesting that lessened demand for a product will reduce the price, RFA’s affidavit in this case is enough, in part because the record otherwise does not establish that all of the injury to Biofuels Coaliti on members is “th[e] result [o f] the independent action of some third party not before the court.” Lujan , 504 U.S. at 560–61 (citation omitted, brackets in original). We recognize that markets are often complicated, and nothing in today’s opinion should be construed as holding that the analys is of RFA’s economist is unimpeachable. When evaluating standing, however, “[t]he judicial task of determining causation can be imprecise” because courts must make a “predictive judgment” about a “notoriously difficult issue” based on a pre-trial record. Carpenters , 854 F.3d at 6; see also id. (stating that “[c]ommon sense and basic economics” may be relevant to assessing causati on in this context) . It is “well settled” for these purposes that “petiti oners need not prove a cause-and-effect relationship with absolute cer tainty; substantial likeliho od of the alleged causality meets the test.” Nat. Res. Def. Council v. NHTSA , 894 F.3d 95, 104 (2d Cir. 2018) (citation omitted); see also Lexmark Int’l, Inc. v. Static Control Components, Inc. , 572 U.S. 118, 134 n.6 (2014) (reiterating that “[p]roxi mate causation is not a requirement of Article III standing”). “Thi s is true even in cas es where the injury50 hinges on the reactions of third part ies” to an agency’s conduct. Nat. Res. Def. Council , 894 F.3d at 104. Additionally, more than just general co mpetitive harm is fair ly traceable to the extensions of the three small refinery exemptions at issue. Those extensions not only remove a large compliance burden from the Refi neries, but also speci fically relate to products (ethanol and ethanol feedstocks) that Biofuels Coalition members sold and continue to sell. Several courts have found causation fo r purposes of standing when government action results in concrete and particularized changes to a competitive relationship. See, e.g., Nat’l Biodiesel Bd. , 843 F.3d at 1015–16 (holding, based on the facts in a competitor standing case, th at it was “self-evident ” the complainants established “injury, causa tion, and redressability”); Int’l Bhd. of Teamsters v. U.S. Dep’t of Transp. , 724 F.3d 206, 211–12 (D.C. Cir. 2013) (holding, based on the facts in a competitor standing case, that “[t]he causa tion and redressability requirements of Article III are eas ily satisfied”). The Refineries challenge redr essability as well, the th ird component of the test for Article III standing. Pointing out that the RINs reinstated by the EPA were only valid in 2016 and 2017, Cheyenne and Woods Cross argue that vacating the EPA’s grants of those petitions will not benefi t the Biofuels Coalition now. Wynnewood joins in by arguing that it was unnecessary to “reinstate” any 2017 RI Ns at all for that refinery. The Refineries also contend that there is no st atutory basis for the EPA to force them to retire different RINs in excess of RFS obliga tions for future years, and even if there were, it would be speculative to conclude th is small set of RINs would51 meaningfully affect ethanol prices or ot herwise change the financial fortunes of individual Biofuels Coalition memb ers. This is especially true, the Refineries assert, given the Biofuels Coalition’ s allegation that there are already billions of cheap carryover RINs in the market. Significantly, however, we ha ve also taken cues from Massachusetts on redressability. We stated in Consumer Data that “[t]he Supreme Court has rejected interpretations of the rule that demand co mplete redressability, stressing that a plaintiff need show only that a favorable decision would redress ‘ an injury,’ not

‘ every injury.’” 678 F.3d at 902 (e mphasis in original, quoting Larson v. Valente , 456 U.S. 228, 243 n.15 (1982)). Referencing Massachusetts , we found that “[r]edressability was satisfied” because “the risk of harm would be reduced to some

extentif petitioners received th e relief they seek.” Id. (citation and internal quotation marks omitted, emphasis in original). Even more pointedly, we rejected the argument that a favorable decision must re dress at least one injury completely: [T]he State cites no authority for this theory, and neglects to account for Massachusetts v. EPA where the Court adopted the contrary conclusion – standing is proper where a favorab le decision would relieve “some extent” of an injury. I ndeed, if the law required that the requested relief afford complete redre ss, the Supreme Court would not have allowed Massachusetts to proceed against th e EPA, as there was no guarantee a favorable decision would mitigate agai nst future envir onmental damage, must less redress it completely. Id. at 905 (citation omitted, brac kets added). We recogni zed the same principle in Chamber of Commerce of the U.S. v. Edmondson , 594 F.3d 742 (10th Cir. 2010), concluding that “the harms alleged by the Ch ambers will likely be ‘reduced to some52 extent’ by an injunction running ag ainst the Attorney General.” Id. at 757–58 (citations omitted); see also id. at 757 n.16 (“An opposit e holding would contravene Supreme Court precedent so as to require complete redressability.”). We pause to address the Refineries’ point that a favorable order will not affect the market or redress any ec onomic harm because all of th e reinstated or exempted RINs were for 2017 or earlier compliance year s. While it is true that a given RIN may be carried over only to the next compliance year, see, e.g., 40 C.F.R. § 80.1427(6)(i), that RIN ma y have ongoing effects as a result of the carryover

process . A RIN generated in year one but us ed in year two reduces the amount of blending that must be done or the number of RIN purchases that mu st be made in the second year. This process then repeats itself year to year. In year two, for instance, any excess blending accomplished or excess RINs acquired may be carried over for compliance purposes to yearthree. The EPA app ears to have implicitly acknowledged these ripple effects by noting in its proposed standards for 2019 that “[w]hile EPA cannot predict how obligated parties will comply in 2018 or the amount of additional small refinery hardship exemptions that ma y be granted in the future, the 2016 and 2017 exemptions ha ve directly increased the number of carryover RINs that will likely be available for complianc e with the 2019 standards.” Renewable Fuel Standard Program: Sta ndards for 2019 and Biomass-Based Diesel Volume for 2020, 83 Fed. Reg. 32,0 24, 32,030 (proposed July 10, 2018). Moreover, although we do not decide today the nature or scope of the EPA’s remedial powers, we conclude that vacati ng or invalidating the extensions of the53 Refineries’ exemptions is “likely” to l ead to EPA action addressing the contested 2016–2017 RINs, thus at least partially redressing the Biofuels Coalition’s alleged harms. In addition to au thorizing civil penalties, see 42 U.S.C. § 7545(d)(1), the amended Clean Air Act conveys to federal courts the power to award injunctive and “other appropriate” relief for specified vi olations of the st atute or accompanying regulations. See id. § 7545(d)(2). The statute then directs the EPA to promulgate regulations to “ensure” that gasoline sold “contains the applicable volume of renewable fuel.” Id. § 7545(o)(2)(A)(i). Among othe r things, those regulations prohibit creating or transferring “a RIN thatis invalid,” 40 C.F. R. § 80.1460(b)(2), failing to acquire sufficient RINs or usi ng invalid RINs “to meet the person’s RVOs,” id. § 80.1460(c)(1), and causing another pers on to commit these and other violations. Id. § 80.1460(d). On more than one occasion, the EPA ha s requested legal action seeking afterthe-fact retirements of RINs. Two exampl es are highlighted on the EPA’s website.
See Civil Enforcement of the Renewable Fuel Standard Program, https://www.epa.gov/enforcement/civil-en forcement-renewabl e-fuel-standardprogram (last visited January 17, 2020). In United States v. NGL Crude Logistics,
LLC , No. 2:16-cv-1038-LRR (N.D. Iowa), a co mplaint filed in 2016 “at the request of the Administrator” sought to require the defendant to retire approximately 36 million invalid RINs from 2011 to “offset the harm caused by the violations.” NGL Crude Logistics Docket No. 21 at 1, 9–13, 23. Th e parties entered into a consent decree that accomplished just that, with the defendant retiring the RINs in 2018–54 2019. Id. Docket No. 247 at 1, 6–7. In United States v. Chemoil Corp. , No. 4:16-cv05538-PJH (N.D. Cal.), the complaint filed at the EPA’s request sought to require the defendant to retire approximately 73 millio n RINs to comply with RVOs from 2011–
2013. Chemoil Corp. Docket No. 1 at 10, 14. That case was also resolved via a consent decree, with the defendant re tiring 65 million RINs in 2016–2017. Id. Docket No. 7 at 4, 10. The purpose of th ese illustrations is not to comment on the legal merits of the cases, but instead to demonstrate th e likelihood of the EPA taking further action to offset the e ffects of any 2016–2017 refinery RINs that are vacated or deemed invalid by court order.
Post- Sinclair events reinforce this conclusion. After holding thatan existential threat to a refinery’s existence was not the sine qua non of “disproportionate economic hardship,” this court vacated two agency orders denying hardship relief and granted the EPA’s request for a voluntary rema nd and vacatur with respect to a third. Producers of Renewables United for In tegrity Truth & Transparency v. EPA , 778 F. App’x 1, 2–3 (D.C. Cir. 2019). On remand, the EPA granted extensions of these Wyoming refinery exemptions, and orde red a form of prospective relief: The three Wyoming refineries had by then demonstrated compliance with the 2014 and 2015 standards by re tiring RINs for those years, and those RINs had since expired. The EPA thus decided that, in order to provide the refineries with “meaningf ul relief” from their since-excused compliance, it would “replac[e]” the re tired, expired RINs with an equal number of newly minted 2018 RINs. Id. at 3 (quotation marks and brackets in or iginal). A petitioner challenged the EPA’s RIN-replacement orders, and th e D.C. Circuit transferred th e case to this court. Id. at55 3–4. Again, we raise this matte r not to pre-judge the merits of Producers of Renewables , as those merits will be evaluated by a different pane l of this court. We highlight the case solely to show a likelihoo d that the EPA will not sit on its hands if prior refinery RINs are invalidated. The competitor standing doct rine likewise informs redr essability. The EPA’s decisions to lift renewabl e fuel requirements by exte nding the small refinery exemption convey an advantage to the Refi neries linked to the principal economic activity of certain Biofuels Coalition members (generati ng, marketing, and selling ethanol). Courts invoking competitor standi ng observe that redres sability is “closely related to the question of causation,” and when the complainants are subjected to some form of ongoing harm, “it logically follows that relief would redress their injury – at least to some extent, which is all that Article III requires.” Citizens for Responsibility & Ethi cs in Washington , 939 F.3d at 147; see also United States v. Students Challenging Regulator y Agency Procedures (SCRAP) , 412 U.S. 669, 689 n.14 (1973) (declining to limit standing to “those who have been ‘significantly’ affected by agency action,” and noting that“an identifiable tr ifle is enough for standing to fight out a question of principle”) (citation omitted). Because standing defines a nd limits the power of th e judicial branch, it does not exist for the convenience of the parties. Standing must be based on specific facts satisfying all required legal el ements, just as our determ ination that the Biofuels Coalition has standing is based on the facts presented here. Still, the implications of the Refineries’ position cannot be overlooked . This case is unusual because it56 involves decisions to grant three small refi nery extension petitions, as opposed to just one. There is evidence in th e record that thes e three Refineries collectively account for a non-trivial amount of exempted rene wable fuel. This case also involves multiple third-party producers, acting thr ough the trade associations or advocacy groups that constitute the Bi ofuels Coalition. There is evidence that these producers collectively account for a non-trivial amount of ethanol and ethanol feedstocks. If these complainants la ck a “fairly traceable” and “redre ssable” injury vis-à-vis these Refineries, it is hard to imagin e ones that would. In other words, if the Refineries are correct on the issue of standing, then EPA decisions to reduce renewable fuel obligations under the Clean Air Act by gran ting extensions of the small refinery exemption may be effectively unreviewable. This threat is heighten ed by the manner in which extension petitions are granted. Small refineries understandabl y do not want to publicize otherwise restricted financial information. So the refineries request that their petitions be kept confidential. E.g. , REC2 at 598, 653, 687; see also supra § I.C (surveying some of the legal bases for confidentiality desi gnations). Given th ese confidentiality concerns, the EPA normally does not publis h decisions granting small refinery petitions, in the Federal Regi ster or anywhere else. See Sinclair , 887 F.3d at 992 (“Nor do third parties have access to th e decisions, since the EPA does not publicly release its decisions because they contain confidential business in formation.”). This makes it difficult for outsi ders to determine when pe titions have been filed and granted. Members of the Biofuels Coaliti on claim that they only found out about the57 agency’s decisions in this matter through Reuters articles and public company disclosure documents like Forms 10-K. Cooper Decl. ¶ 12; Jennings Decl. ¶ 5; Johnson Decl. ¶ 8; Doggett Decl. ¶ 8. Yet w ithout participation by th ird parties, it is difficult to see how EPA decisions granti ng small refinery petitions will ever be subject to appellate review. A small refinery that rece ives an extension of its renewable fuels exemption ha s no incentive to appeal. Nor does the EPA have any incentive to appeal its own decision. Excepting these EPA small refinery deci sions from judicial review aimed at ensuring statutory compliance would be tr oublesome. “Congress rarely intends to prevent courts from enforcing its di rectives to federal agencies.” Mach Mining, LLC
v. EEOC , 135 S. Ct. 1645, 1651 (2015). The Administrative Procedure Act (“APA”) “creates a basic presumpti on of judicial review [fo r] one suffering legal wrong because of agency action.” Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv. , 139 S. Ct. 361, 370 (2018) (citation and internal quotation marks omitted, brackets in original). The Supreme Court has long characterized the presumption favoring judicial review as “str ong,” and it can be rebutted only upon a showing that “Congress wanted an agency to police its own conduct.” Mach Mining , 135 S. Ct. at 1651 (citation omitted). No such showing has been made here, as nothing in the amended Clean Air Act directly “precludes review” of EPA decisions granting small refinery petitions, and “federal courts routinely assess” th ese types of adjudications under APA provisions such as 5 U.S.C. § 706(2). Weyerhaeuser , 139 S. Ct. at 370, 371. Accepting the Refineries’ standi ng arguments would largely negate this58 presumption and preclude any ju dicial review of orders granting extensions of the small refinery exemption.
III. O THER JURISDICTIONAL ISSUES The Refineries present several other chal lenges to jurisdiction. In addition to contesting jurisdiction based on the 2014 change in the EP A’s definition of “small refinery,” see infra § IV.A.2, the Refineries separate ly contend that the Biofuels Coalition was required to, but did not, file this action within 60 days of the issuance of the EPA orders granting the Refineries ’ hardship petitions. The Refineries maintain as well that the Bi ofuels Coalition, notwithstandi ng its status as a non-party to agency proceedings on th e Refineries’ hardship app lications, was required to present its arguments to the EPA before seeking judicial review. The EPA contests jurisdiction based on the 2014 Small Refinery Rule, but does not join either of the Refineries’ other two ju risdictional arguments.
A. T IMELINESS The Clean Air Act generally requires chal lenges to final agency actions to be filed “within sixty days fro m the date notice of such promulgation, approval, or action appears in the Federal Register[.]” 42 U.S.C. § 76 07(b)(1). “The deadline in § 7607(b)(1) is jurisdictional.” Utah v. EPA , 765 F.3d 1257, 1258 (10th Cir. 2014). Because “Congress waived sovereign imm unity through § 7607(b)(1),” the 60-day deadline “serves a juri sdictional function” by restric ting this congressional waiver. Id. at 1260. The relevant EPA regulation st ates that “[u]nless the Administrator otherwise explicitly provides in a particular promulgation, approval, or action, the59 time and date of such promulgation, approv al or action” for purposes of § 7607(b)(1) “shall be at 1:00 p.m. eastern time (standard or daylight , as appropriate) on (a) for a Federal Register document, the date when the document is published in the Federal Register, or (b) for any other document, tw o weeks after it is signed.” 40 C.F.R. § 23.3. The history of § 23.3 is instructive. The main reason the EPA proposed this provision and related pr ovisions was “to bring greater fa irness to so-cal led ‘races to the courthouse.’” 50 Fed. Re g. 7,268 (Feb. 21, 1985). Li tigants looked for what they perceived as friendly courts regarding the interpretation of certain statutes. They then sought “by various means to be the firs t to be informed of an Agency action and then to be the first to file a petition for review in one of the [friendliest of the] twelve United States courts of appeals.” Id. (brackets added). The Clean Air Act, by providing for “exclusive judicial review in the D.C. Circuit of EPA’s nationallyapplicable regulations,” elim inated “a great many racing op portunities,” but not all of them, and other statutes containe d no provisions to reduce racing. Id. In promulgating the new rules, the agency sought to “eliminat e the worst abuses associated with race s to the courthouse under those EP A-administered statutes that allow racing and under which races are reasonably likely to occur.” Id. One commenter objected to the new rule s on the ground that “affected persons may have no notice of the action” a nd be deprived of due process. Id. at 7,269. The EPA addressed that concern by noting that “[m]ost potential litiga nts interested in actions covered by the regulat ions will have actual notice of non-Federal Register60 documents.” Id. As to litigants with notice, the EPA observed that the rule “will have the beneficial effect of establishing a fixed trigger for co mmencing the judicial review process.” Id. Litigants without notice were not part of any race to the courthouse, and thus were not addressed by the rule: “The co mmenter’s concern – that someone entitled to seekjudicial review, and who has no notice of the action, will later be barred from obtaining review by a preclusive judicial review provision – addresses a matter not within the scope of this rulemaki ng. Any such claim can be raised in judicial proceedings if it arises in practice.” Id. The Refineries assert that the reference to “any other document” in the text of § 23.3 trumps any preamble, but there is no conflict between the two. The rule provides that agency actions reflected in the Federal Register become final at 1:00 p.m. eastern time on the date of publicati on, and agency actions reflected in other documents become final two week s after publication. The rule is silent as to whether this principle of finality applies to agency actions ef fected by “other document[s]” when parties are without notice. It does not say parties without notice are, or are not, subject to the rule. Instead, it leaves that issue to be “rai sed in judicial proceedings if it arises in practice.” 50 Fed. Reg. at 7,269. Filling this silence by construing § 23.3 to foreclose appeals by parties without notice would be irrational. What possibl e purpose would be served by such an interpretation, other than to immunize unpu blished agency actions from third party scrutiny? The agency’s just ification for promulgating the rule in the first instance – setting a fixed trigger for commencing the j udicial review process – does not apply to61 parties without notice who cannot participat e in any race to the courthouse. As a result, the Refineries’ proposed interpretation of § 23.3 is not just inconsistent with the strong presumption fa voring judicial review of agency action. See supra § II. It is also in tension with th e enduring principle that if a literal interpretation would “lead to absurd result s, or be contrary to the eviden t meaning of the act taken as a whole, it should be rejected.” Heydenfeldt v. Daney Go ld & Silver Mining Co. , 93 U.S. 634, 638 (1876). We summarize our ruling as follows: The 60-day deadline in 42 U.S.C. § 7607(b)(1) did not render the Biofuels Coalition’s petition untimely. Because agency orders granting the Refineries’ ha rdship petitions were not published in the Federal Register, the stat utory clock never started. 3 The EPA regulation implementing the statute states that docum ents other than those published in the Federal Register become final two weeks af ter they are signed, but the text and the preamble demonstrate that th e regulation does not addre ss parties without notice of such “other documents.” Th e Refineries’ attempt to invo ke the statutory cut-off is misguided.
B. R IPENESS

3 The statute also permits a party seek ing review “based solely on grounds arising after such sixtieth day” to submit a petition “within si xty days after such grounds arise.” 42 U.S.C. § 7607(b)(1). Here, however, th ere is no way to hold that the Biofuels Coalition’s pet ition is based exclusively on grounds arising 60 days after any publication in the Fede ral Register (thus triggeri ng the “after-arising” 60-day filing period), because no pu blication ever took place.62 The Refineries’ other argument is couc hed in terms of ri peness. Although federal courts have a “vir tually unflagging” obligation to hear and decide cases within their jurisdiction, Lexmark , 572 U.S. at 126 (citations omitted), the ripeness doctrine is intended “to prevent the c ourts, through avoidance of premature adjudication, from entangling themselv es in abstract disagreements over administrative policies, and also to prot ect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Nat’l Park Hosp. Ass’n v. Dep’t of Interior , 538 U.S. 803, 807–08 (2003) (c itation omitted). “Determi ning whether administrative action is ripe for judicial review requires us to evaluate (1) the fitness of the issues for judicial decision and (2) the hardsh ip to the parties of withholding court consideration.” Id. at 808. The “fitness for judicial decision” criterion favors review. Relevant considerations include whethe r “the issue is a purely lega l one,” whether “the agency decision in dispute was final,” whether th e court would “benefit from further factual development of the issues presented,” and whether “judicial intervention would inappropriately interfere with fu rther administrative action[.]” Wyoming v. Zinke , 871 F.3d 1133, 1141–42 & n.2 (10th Cir. 201 7) (citations and internal quotation marks omitted). No one disputes that the refinery orders constitute final agency actions. The core statutory interpretation issues are pre dominantly legal. Combined with the public record , the existing agency record is sufficient to decide the factbased issues that have been presented on appeal. The EPA’s position is crystallized63 in three written orders granting the refinery petitions. There is no indication that the EPA intends to reconsider thos e orders, so judicial review will not interfere with any ongoing or contemplated administra tive activity. The “hardship to the parties” criteri on favors review as well. We have afforded substantial weight to the ha rdship element when complainants face “significant costs, financial or otherwise, ” if their disputes are deemed unripe for adjudication, and when the respondent has “t aken some concrete action” that impairs or threatens to impair th e petitioner’s interests. Utah v. U.S. Dep’t of Interior , 535 F.3d 1184, 1197–98 (10th Cir. 200 8). All of those factors are present here. The EPA has taken concrete action by granting the Re fineries’ extension petitions. Exempting the Refineries from RFS compliance impair s the interests of Biofuels Coalition members by increasing competition and reducing the value of products those members market and sell. The allege d harm suffered by Bi ofuels Coalition constituents will worsen if judici al review is delayed or denied. The Refineries cite au thorities discussing the be nefits of allowing an administrative agency to consider the pr ecise question raised, adding that a litigant waives any argument not so presented. Th e cases indicate that parties “generally must structure their participat ion so that it alerts the ag ency to the parties’ position and contentions, in order to allow the agency to give the issue meaningful consideration.” Forest Guardians v. U.S. Forest Serv. , 495 F.3d 1162, 1170 (10th Cir. 2007) (citations and inte rnal quotation marks omitted). The cases also explain that the waiver rule ensure s “simple fairness” to the agency and other affected64 litigants, while providing a court “with a re cord to evaluate complex regulatory issues[.]” ExxonMobil Oil Corp. v. FERC , 487 F.3d 945, 962 (D.C. Cir. 2007) (citation omitted). This general presentment requirement does not cause the case at hand to be unripe. Biofuels Coalition members rece ived no notice of and no invitation to participate in the proceedings culminating in the refinery extension orders. Biofuels Coalition members were thus precluded from raising administrative arguments in opposition to the refinery extensions, and the EPA cannot be forced to conduct a brand new hearing. This cour t is powerless to require ad ministrative procedures in addition to those set forth in the APA, Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc. , 435 U.S. 519, 524 (1978), which beyond its plain text imposes only “a general ‘procedural’ requirement of sorts by mandating that an agency take whatever steps it needs to provide an e xplanation that will enable the court to evaluate the agency’s rationale at the time of decision.” Pension Benefit Guar. Corp. v. LTV Corp. , 496 U.S. 633, 654 (1990). Even if the refinery orders and the existing administrative record in theo ry could be more tailored to each argument giving rise to this appeal, they in practice provide adequate facts an d a sufficient explanation of the EPA’s reasoning to permit judicial review.
IV. T HE B IOFUELS C OALITION ’ S STATUTORY CONSTRUCTION CHALLENGES The Biofuels Coalition contends that the EPA exceeded its statutory authority in at least three respects by granting the Refineries’ petit ions. First, the Biofuels Coalition asserts that the EPA failed to honor the statutory requirement of an65 “extension,” confusing an extension of an ex emption with a plain-vanilla exemption. Second, the Biofuels Co alition argues that the EPA robbed the phrase “disproportionate economic hardship” of its intended meaning by focusing on structural factors and eschewing a comparat ive analysis to determine which hardships are disproportionate. Third, the Biofuels Coalition says the EPA neglected to require that any disproportionate economic hardsh ip was caused by compliance with RFS obligations. These arguments rise or fa ll with the provisions in 42 U.S.C. § 7545(o)(9). For reference, those provisions state in relevant part: (9) Small refineries (A) Temporary exemption (i) In general The requirements of paragraph (2) shall not apply to small refineries until calendar year 2011. (ii) Extension of exemption (I) Study by Secretary of Energy Not later than December 31, 2008, the Secretary of Energy shall conduct for the Admini strator a study to determine whether compliance with the re quirements of paragraph (2) would impose a disproportionate economic hardship on small refineries. (II) Extension of exemption In the case of a small refinery that the Secretary of Energy determines under subclause (I ) would be subject to a disproportionate economic hardship if required to comply with paragraph (2), the Administra tor shall extend the exemption66 under clause (i) for the small re finery for a period of not less than 2 additional years. (B) Petitions based on dispropo rtionate economic hardship (i) Extension of exemption A small refinery may at any time petition the Administrator for an extension of the exemption under subparagraph (A) for the reason of disproportiona te economic hardship. (ii) Evaluation of petitions In evaluating a petition under clause (i), the Administrator, in consultation with the Secretary of Energy, shall consider the findings of the study under s ubparagraph (A)(ii) and other economic factors. (iii) Deadline for actions on petitions The Administrator shall act on any petition submit ted by a small refinery for a hardship exemption not later than 90 days after the date of receipt of the petition. 42 U.S.C. §§ 7545(o)(9)(A)–(B ) (emphasis in original). Plain and unambiguous stat utory language must be en forced “according to its terms,” because we assume “the ordina ry meaning of that language accurately expresses the legislative purpose.” Hardt v. Reliance Standard Life Ins. Co. , 560 U.S. 242, 251 (2010) (citat ion and internal quotation ma rks omitted). To decide whether the language of a stat ute is plain, “we must read the words in their context and with a view to their place in the overall statutory scheme.” King v. Burwell , 135 S. Ct. 2480, 2489 (2015) (citation and intern al quotation marks omitted). A statute generally should be interprete d “so that effect is given to all its provisions, so that no part will be inoperative or s uperfluous, void or insignificant.” Rubin v. Islamic67 Republic of Iran , 138 S. Ct. 816, 824 (2018) (citati on and internal quotation marks omitted). The goal is to view the law “as a symmetrical and coherent regulatory scheme” and to “fit, if possible, all parts into an harmonious whole.” FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 133 (2000) (citations and internal quotation marks omitted); see also Graham Cty. Soil & Water Conservation Dist. v. United States ex rel. Wilson , 559 U.S. 280, 290 (2010) (indi cating that a court’s duty is “to construe stat utes, not isolated provisions”) (citation and internal quotation marks omitted).
A. E XTENSION OF EXEMPTION The APA states that a reviewing cour t shall “hold unlawful and set aside agency action, findings and conclusions” found to be “in excess of statutory jurisdiction, authority, or limitations, or short of statutory ri ght[.]” 5 U.S.C. § 706(2)(C). The APA further states that “[t]o the extentnecessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory prov isions, and determin e the meaning or applicability of the terms of an agency action.” Id. § 706. When reviewing an agency’s legal determination, the court ge nerally applies the st andard of review articulated by the Supreme Court in Chevron v. Natural Resources Defense Council , 467 U.S. 837 (1984). See id. at 842–44 (asking “wheth er Congress has directly spoken to the precise question at issue,” and if not, “wheth er the agency’s answer is based on a permissible constr uction of the statute”).68 There are times, however, when Chevron is inapplicable. “[L]egislative rules and formal adjudications are always entitled to Chevron deference, while less formal pronouncements like interpreti ve rules and informal adjudi cations may or may not be entitled to Chevron deference.” Sinclair , 887 F.3d at 990 (citation omitted); see also United States v. Mead Corp. , 533 U.S. 218, 229 –30 (2001) (“It is fair to assume generally that Congress contemplates admi nistrative action with the effect of law when it provides for a relatively formal ad ministrative procedure tending to foster the fairness and deliberation that should underlie a pronouncemen t of such force.”). In Sinclair , we determined that “Congress did not intend the EPA’s interpretation of ‘disproportionate economic hardship’ to have the ‘force of law.’” 887 F.3d at 993. And we concluded that informal adjudi cations of petitions to extend the small refinery exemption were not subject to Chevron deference. Id. at 992; see also id. (noting, among other things, that such adj udications lack “trial -like procedures” and “the benefit of notice-and-comment”). When Chevron does not apply, “we follow the analysis set forth in Skidmore v. Swift & Co. , 323 U.S. 134 (1944).” Id. at 991 (parallel citations omitted). Skidmore review means that the weight provided to an administrative judgment “will depend upon the thoroughness evident in [the agen cy’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncem ents, and all those factors which give it power to persuade, if lack ing power to control. ” 323 U.S. at 140 (brackets added). Put another wa y, an administrative ruling under Skidmore may69 “claim the merit of its writer’s thoroughness, logic, and e xpertness, its fit with prior interpretations, and any othe r sources of weight.” Mead , 533 U.S. at 235.
1. T EXTUAL ANALYSIS For the Biofuels Coalition’s first statut ory argument, we be gin with the text referring to an “Extension of Exemption.” The small refinery exemption subject to an extension in this section of the amende d Clean Air Act is e xpressly identified as “Temporary” in subpart (A). 42 U.S.C. § 7545(o)(9)(A). That temporary exemption for small refineries initially la sted until calendar year 2011. Id. § 7545(o)(9)(A)(i). Congress decided this tempor ary exemption could be extended past 2010 for a given small refinery if compliance, as de termined by a DOE study, would impose disproportionate economic hardship. Id. § 7545(o)(9)(A)(ii). In subpart (B), Congress decided that this te mporary exemption could also be extended past 2010 for a small refinery if complia nce, as adjudicated by the EPA in response to that refinery’s petition, woul d impose disproportionate economic hardship. Id. § 7545(o)(9)(B)(i)–(ii). A common definition of “extension” that me shes with this st atutory scheme is apparent. Several dic tionaries include a definition of “e xtension” to the effect of “an increase in length of time,” especially “an increase in time allowed under agreement or concession.” Extension , Merriam-Webster Online Dictionary, https://www.merriam-webster .com/dictionary (last visi ted January 17, 2020); see also
Extension , Collins Online Dictionary, https://www.collinsdictionary.c om/dictionary/english (“Collin s,” last visited January70 17, 2020) (“An extension is an extra period of time for which something lasts or is valid, usually as a result of official permission.”); Extension , Dictionary.com Online Dictionary, https://www.dictionary.com/bro wse (“Dictionary.com,” last visited January 17, 2020) (“[A]n additional pe riod of time given one to meet an obligation[.]”). Similar dictionaries cont ain a related definition of “extension”: “[T]he fact of reaching, stretching, or c ontinuing; the act of adding to something in order to make it bigger or longer.” Extension , Cambridge Online Dictionary, https://dictionary.cambridge.o rg/us/dictionary/english (“ Cambridge,” last visited January 17, 2020); see also Extension , Dictionary.com (“[T]hat by which something is extended or enlarg ed; an addition[.]”); Extension , Lexico Online Dictionary, https://www.lexico.com/en/definition (“Lexico ,” last visited January 17, 2020) (“A part that is added to someth ing to enlarge or prolong it.”). These dictionaries also indicate that the definition of “extend” in cludes “to add to something in order to make it bigger or longer.” Extend , Cambridge; see also Extend , Merriam-Webster (“[T]o cause to be longer: Pr olong[.]”) (capitalization omitted). These ordinary definitions of “exten sion,” along with common sense, dictate that the subject of an extens ion must be in existence befo re it can be extended. For example, if someone interested in current ev ents subscribes to a news service in years one through five, allows the subscription to lapse in year s six and seven, and goes back to the news serv ice in year eight, we usually do not say that year eight was an “extension” of the subscripti on from years one through five. Rather, we say that the person renewed or restarted his or her subscription in year eight. Likewise, if71 someone seeks and obtains permission in years one through five to shop at a members-only retailer, does not seek or is denied membersh ip in years six and seven, but seeks and obtains member ship in year eight, we t ypically do not say that the return to the retailer in y ear eight was an “extension” of the membership. We say, instead, that the person renewed or restarte d his or her membership in year eight. Paired with the rest of the amende d Clean Air Act, therefore, common definitions of “extension” mean that a small refinery which did not seek or receive an exemption in prior years is in eligible for an extension, b ecause at that point there is nothing to prolong, enla rge, or add to. Congre ss chose to provide an “ Extension of exemption” for disproportionate economic ha rdship, based either on the results of the DOE study or on a meritorious petition. Congress did not provide an unlimited

“ Exemption ” to every small refinery identif ied in the DOE study or with a meritorious petition. See Advocate Health Care Network v. Stapleton , 137 S. Ct. 1652, 1659 (2017) (observi ng that “[w]hen legislator s did not adopt ‘obvious alternative’ language, ‘the natural impli cation is that they did not intend’ the alternative”) (citation omitte d). Congress presumably used the term “extension” for a reason, and we should be hesitant to stri p that word of significant meaning. See TRW, Inc. v. Andrews , 534 U.S. 19, 31 (2001) (restati ng that “[i]t is a cardinal principle of statutory cons truction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignifi cant”) (citation and intern al quotation marks omitted).72 This interpretation of “exte nsion” funnels small refineries toward compliance over time. The statute contem plates a “temporary” exemp tion for these entities “with an eye toward eventual compliance with the renewa ble fuels program for all refineries.” Hermes Consolidated, LLC v. EPA , 787 F.3d 568, 578 (D.C. Cir. 2015). All small refineries were the beneficiar ies of a blanket exemption from 2006 through 2010. According to the EPA, 24 of these small refineries received extensions of their exemptions in the aftermath of the 2011 DOE study. See supra § I.B. That number should have tapered down from 2013 forward, because the onl y small refineries from this group which continued to be eligible for extensions were ones that submitted meritorious hardship petitions each year. This reading of “extension” means that once a small refinery figures out how to put itself in a position of annual compliance, that refinery is no longer a candidate for extending (really “renewing” or “restarting”) its exemption. The EPA and the Refineries place si gnificant weight on more recent Congressional pronouncements emphasizing th e significance or br eadth of the small refinery exemption. See supra § I.B. The Supreme Court has discouraged the use of “[p]ost-enactment legislative history (a cont radiction in terms),” stating that such history “is not a legitimate tool of statutory interpretation.” Bruesewitz v. Wyeth
LLC , 562 U.S. 223, 242 (2011). “Real (pre-enactme nt) legislative history is persuasive to some because it is thought to shed light on what legislators understood an ambiguous statutory text to mean when th ey voted to enact it into law. But postenactment legislative hist ory by definition could ha ve had no effect on the73 congressional vote.” Id. (citations and internal quotation marks omitted). Bruesewitz assigned no value to “a Commit tee Report by a later Congress,” id. at 241, consistent with other precedent. See, e.g., Barber v. Thomas , 560 U.S. 474, 486 (2010) (“[W]hatever interpretive forc e one attaches to legislativ e history, the Court normally gives little weight to statem ents, such as those of the individual legislators, made after the bill in question has become law.”) (emphasis in original); Graham , 559 U.S. at 297–98 (refusing to rely on a letter wri tten by the primary sponsors of a bill “13 years after the amendments were enacted,” as the letter ha d “scant or no” interpretive value). We need not decide whether the post- enactment history proffered by the EPA and the Refineries is off limi ts, because even if we consid er those materials, they do not change the outcome. The post-enactmentmaterials do not di scuss the definition of “extension.” Moreover, assuming arguendo that certain legislators thought the small refinery exemption was important, the ones who enacted the law also made clear that the renewable fuel targets re flected in the Energy Policy Act and the Energy Independence and Security Act we re essential to promoting biofuel production, energy independence, and environmental protection. See supra §§ I.A– B; see also American Fuel & Petrochemical Mfrs. v. EPA , 937 F.3d 559, 568 (D.C. Cir. 2019) (confirming that the RFS prog ram was intended to “move the United States toward greater energy independe nce and security” and “increase the production of clean renewable fuels”) (c itation omitted). T hose targets were designed to be aggressive and “market forcing.” See supra §§ I.A–B; see also74 Americans for Clean Energy v EPA , 864 F.3d 691, 710 (D.C. Cir. 2017) (“[T]he Renewable Fuel Program’s in creasing requirements are desi gned to force the market to create ways to produce and use greater a nd greater volumes of renewable fuel each year.”). To balance all of those policy concerns, Congre ss gave small refineries a substantial amount of time to adapt, co mmencing the RFS program with a blanket exemption that for some refineri es ended up lasting seven years. A small refinery in 2006 was in a much di fferent position than a small refinery in 2016 or 2017. A small refinery in 2006 did not have a meani ngful opportunity to consider in advance whether or how it could comply with renewable fuel obligations. In contrast, a small refinery in 2016 or 2017 had many years to ponder operational issues and compliance costs, including whether it made sense to en ter into or remain in the market in light of the statute’s challenging renewable fuels mandate. The EPA has long required each small re finery submitting an extensi on petition to consider and explain when the refinery w ill achieve compliance. 40 C.F. R. § 80.1441(e)(2)(i). So a small refinery in 2016 or 2017 had an am ple opportunity to study and understand any disproportionate econom ic impact likely to be occasioned by meeting Congressional targets. Construing the word “extension” to require prior exemptions – as a predicate to prolongment or enla rgement – limits but preserves the small refinery exemption while giving meaning to the remainder of 42 U.S.C. § 7545(o)(9). Understanding “extension” to require a predicate “exemption” is not new. Through at least the first qua rter of 2016, the EPA itself limited “extensions” to only those small refineries that qua lified for the original blanke t exemption. To illustrate,75 in April 2016, the EPA denied a petition s ubmitted by Dakota Prairie Refining, LLC (“Dakota Prairie”) to extend the small refi nery exemption in calendar year 2015. Petition for Review, Dakota Prairie Refining, LLC v. EPA , No. 16-2692, at 8 of 17 (8th Cir. June 13, 2016) (“ Dakota Prairie Appellate Petition”). 4 The EPA explained that “[c]onsistent with the plain langua ge of the CAA and in furtherance of Congressional intent, EPA pr omulgated regulations that allow only small refineries that previously had received the initial exem ption to qualify for an extension of that exemption.” Id. Hence, “EPA interprets and implements these provisions as allowing those small refineri es qualifying for the statutor y temporary exemption as now eligible for an extens ion of that exemption.” Id. The EPA explained the rationale for this construction in its April 2016 Dakota Prairie denial letter. The EPA recognized that “this appr oach is not only consistent with the plain language of the statute and re gulations, but also refl ects the fact that newer small refineries have the ability to consider whether they believe the establishment of the RFS program and its requirements will cause economic hardship before beginning operations.” Id. at 8–9 of 17. Furthermore, said the EPA, “this approach avoids two possible negative cons equences associated with any refinery exemption – an increase in ob ligations for non-exempt faci lities or the use of less renewable fuel than EPA antic ipated when it established the applicable percentage

4 The Dakota Prairie petition for appellate review attaches the EPA’s April 14, 2016 denial letter. The petition and its attachments are avai lable on PACER, and those materials are cited in footnote 4 on page 23 of the EP A’s appellate brief in this case.76 standards.” Id. at 9 of 17. The EPA then put thes e principles into practice, stating that “[b]ased on the above, EPA is denying Dakota Prairie’s request to evaluate its petition for a one-year small refinery ex emption for its 2015 RFS obligations.” Id. The EPA and the Refineries contend that“extension” cannot be so interpreted because the statute allows a small refinery to tender a hardship pe tition “at any time.” 42 U.S.C. § 7545(o)(9)(B)(i). Common definitions of “any” are indeed expansive. See, e.g., Any , Dictionary.com (“[W]hatever or whichever it may be[.]”); Any , Lexico (equating “any time” with “[a]t whatever time”); Any , Merriam-Webster (“[U]nmeasured or unlimited in amount, number, or extent[.]”). But even if a small refinery can submita hardship petition at any time, it does not follow that every single petition can be granted . By that logic, the EPA could grant a 2019 petition seeking a small refinery exemption for cale ndar year 2009 – more than a decade after the fact. The EPA would also be empow ered to grant a re-submitted extension petition for an earlier year ev en though the agency had pr eviously denied that very petition. And aside from these hypothetical examples, EPA data show that the approach followed by the agency from 201 6-forward has opened up a gaping and ever-widening hole in the statute. The num ber of petitions file d by small refineries has gone up substantially, and the EPA has gran ted nearly every hardship application. See supra § I.B. In any event, a more delim ited interpretation in whic h an “extension” requires a predicate exemption works hand-in-hand w ith the phrase “at any time.” As noted, the EPA must issue annual RFS percentage s by November 30 of the prior year. 4277 U.S.C. § 7545(o)(3)(A)–(B). Because they can submit petitions “at any time,” small refineries seeking to extend their hardsh ip exemptions are not limited by this November 30 deadline. This is a significa nt statutory concessi on. As explained by the D.C. Circuit: The problem is that while the EPA must promulgate annual percentage standards by November 30 each year, refineries may petition for an exemption “at any time,” 42 U.S.C. § 7545(o)(9)(B)(i), and the EPA has no mechanism to adjust renewable fuel obligations to account for exemptions granted after each year’s percentage standards are finalized. As a result, because th e EPA cannot ensure that non-exempt obligated parties compensate for the renewabl e-fuel shortfall created by belated exemptions, those gallons of rene wable fuel simply go unproduced. American Fuel , 937 F.3d at 571 (emphasis in or iginal). The EPA raises the percentage standards for non-exempt partie s in a given year by subtracting from its calculations the transportation fuel contributi ons of small refineries that were granted exemptions before the EPA established th e percentage standards in question. Id. at 588 (citing 40 C.F.R. § 80.1405(c)). “Thi s solution, however, is only partial: the EPA does not currently account for sm all refinery exemptions granted after it promulgates percentage standa rds for that year – so-called retroac tive exemptions.” Id. (emphasis in original). In short, it confers a s ubstantial benefit upon small re fineries and it maintains a coherent regulatory scheme to interpret “at any time” to exempt hardship petitioners from the EPA’s annual percen tages deadline. The EPA does not have a mechanism to fully compensate for volum es exempted as a result of later-filed or later-granted small refinery petitions, and the tool the EPA does have imposes concomitant78 burdens on non-exempt obligated parties. See id. at 571 (“When calculating percentage standards for any given year, the EPA accounts for a ny small refineries that have received exemptions by requiri ng non-exempt obligated parties to produce proportionally more.”). In terpreting the phrase “at any time” in this manner allows the word “extension” to maintain its ordi nary meaning and to meaningfully promote the aims of the statute. The contrary in terpretation suggested in this lawsuit by the EPA and the Refineries does not. Although our charge is to evaluate onl y the EPA’s adjudication of the three refinery petitions, we draw theoretical support from Americans for Clean Energy , 864 F.3d 691. One of the issues in that ca se was the meaning of the statutory waiver provision based on “ina dequate domestic supply.” 42 U.S.C. § 7545(o)(7)(A). The EPA attempted to defend a reading of thatprovision which was held inconsistent with the letter of the law and the spirit of Congress’ “market forcing policy.” 864 F.3d at 710. The EPA’s proposed interp retation permitted the agency to unduly “bring the volume requirements down,” and “[n]o argument” s upported “that goaldefying (much less that text-def ying) statutory construction.” Id. (citation omitted); see also id. at 712 (commenting that the EPA’s in terpretation turned “the Renewable Fuel Program’s ‘market forcing’ provisi ons on their head”). The D.C. Circuit observed that even if it were persuaded by the agen cy’s policy arguments for lowering renewable fuel volume requirement s, “those arguments could not overcome the statute’s plain language, which is our primary guide to Congress’ preferred policy. If the regime is i ndeed flawed, it is up to Co ngress and the President to79 ‘reenter the field’ and fix it.” Id. (citations and fi rst set of internal quotation marks omitted). Because an “extension” requires a small refinery exemption in prior years to prolong, enlarge, or add to, the three refinery petitions in this case were improvidently granted. Wynnewood last received a hardship exemption in 2012. See

supra § I.C.3. There is no evidence in the r ecord that Woods Cross ever qualified for a hardship exemption, much less in the years preceding the refine ry’s most recent application to suspend compliance. See id. § I.C.2. Although Cheyenne presumably received an exemption in 201 5, its original exemption e xpired no later than 2013. See id. § I.C.1. At most, these Refineries sought to renew or restart their exemptions in 2016 or 2017. The amended Clean Air Ac t did not authorize the EPA to grant the petitions.
2. T HE 2014 S MALL R EFINERY R ULE The EPA and the Refineries contend thatwe lack jurisdic tion to address the foregoing issue as a result of the 2014 am endment to the regulatory definition of “small refinery.” The Clean Air Act gene rally provides that a lthough challenges to final agency actions which are “locally or regionally appli cable” must be filed “in the United States Court of Appeals for the a ppropriate circuit,” challenges to final agency actions identified by the EPA as “based on a determination of nationwide scope or effect” must be file d “in the United States Court of Appeals for the District of Columbia[.]” 42 U.S.C. § 7607(b). The statute also generally specifies that any petition for review under this subsection mustbe filed within 60 days from the date80 notice of such promulgation, approval, or action appears in the Federal Register. Id. ; see also supra § III.A. The EPA and the Refineries assert that the Biofuels Coalition is effectively challenging th e 2014 Small Refinery Rule, and the 60-day window for any such challenge (which could only be hear d in the D.C. Circuit) closed long ago. The EPA communicated the basis for the 2014 Small Refinery Rule in a document entitled “Regulation of Fuels a nd Fuel Additives: RFS Pathways II, and Technical Amendment to the RFS Sta ndards and E15 Misfueling Mitigation Requirements.” 79 Fed. Reg. 42,128 (July 18, 2014). Th e EPA explained that in 2010, the agency specified in the definition of “small refi nery” that the 75,000 barrels per day (“bpd”) threshold determination “s hould be calculated based on information from calendar year 2006.” Id. at 42,152. By 2014, how ever, the agency believed it was inappropriate that “refineries satisfyi ng the 75,000 bpd threshold in 2006 should be eligible for extensions to their small refinery RFS exemption if they no longer meet the 75,000 bp d threshold.” Id. Accordingly, the EPA proposed modifying the definition of “small refinery” so that the 75,000 bpd threshold applied “in 2006 and in all subsequent years.” Id. The EPA also proposed sp ecifying that “in order to qualify for an extension of its small refinery exemption,” a refinery had to qualify as a “small refinery” for “all full calenda r years between 2006 and the date of submission of the petition for an extension of the exemption.” Id. 5

5 The EPA’s original proposal appears at 78 Fed. Reg. 36,042 (proposed June 14, 2013). See id. at 36,063–64 (“[W]e propose m odifying the definition of small refinery so that the crude throughput threshold of 75,000 bpd must apply in 2006 and in all subsequent years.”).81 The EPA received two comments supporti ng these proposed modifications, but ultimately decided to issue a different final rule. Id. at 42,152, 42,163. The EPA stated that “[a]fter further consideration of this matter,” it understood the agency’s initial proposal “could unfairl y disqualify a refinery fr om eligibility for small refinery relief based only on a si ngle year’s production since 2006.” Id. at 42,152. The EPA thought it would be improper to tr eat differently “two refineries whose recent operating conditions were equivalent” if “one refine ry exceeded 75,000 bpd in a single year as much as 8 years ago.” Id. The agency therefor e modified the final rule “to require that throug hput be no greater than 75,00 0 barrels in the most recent full calendar year prior to an application for hardship.” Id. The EPA emphasized that its “primary concern” was “treating refineries w ith similar performance the same,” and argued that the new change s “reasonably implement the statutory definition of ‘small refinery,’ which indi cates that the 75,000 barrel aggregate daily crude oil throughput is for ‘a calendar year,’ but does not specify which calendar year should be the focus of inquiry.” Id. While there may be overlap between the definition of a “sma ll refinery” and the definition of an “extension,” the two i ssues are not the same. Qualifying as a “small refinery” is a necessa ry but not sufficient conditi on for an extension. In addition to meeting the definition of a “sma ll refinery,” a petiti oner must demonstrate that it will suffer dispropor tionate economic hardship if required to comply with the statute’s renewable fuels directive. 42 U.S.C. §§ 7545(o)(9)(A)(ii)(II), 7545(o)(9)(B)(i). A petitioner al so must show that it is seeking an “extension” of an82 exemption, as opposed to a free-standing “exemption.” Id. The 2014 Small Refinery Rule establishes who may seek an extension of an ex emption, but it does not resolve what constitutes a valid extension.

This analysis is consistent with the preamble to and the text of 40 C.F.R. § 80.1441. Both of those sources state th at to qualify for an extension of the exemption, a “small refinery” must have av erage daily crude oil throughput of 75,000 barrels or less in the prior year (in contrast to the previous vers ion of the rule, which looked to an applicant’s throughput in 2006 , and in contrast to the EPA’s opening proposal, which looked to an applicant’s throughput fro m 2006 to the date of the petition). E.g., id. § 80.1441(e)(2)(iii). But neither the preamble nor the administrative rule contains any discussion of what th e word “extension” actually means. The preamble and the administra tive rule also contain no indication that statute’s use of the word “extension” is ambiguous; the ambiguity the EPA attempted to address expressly pe rtained to the phrase “small refinery.” See 79 Fed. Reg. at 42,152 (noting that the statut e does not specify which year should be the focus of the 75,000 bpd small refinery calculation). Tellingly, the EPA itself previously did not treat the 2014 Small Refinery Rule as dispositive on the issue of an “extension” of the exemp tion. In 2016 – almost two years after the amendment reflected in 40 C.F.R. § 80.1441(e)(2)(iii) became effective, see 79 Fed. Reg. at 42,128 – the EP A did not mention its regulatory definition of “small refinery” when de nying the Dakota Prairie petition. Dakota
Prairie Appellate Petition at 8–9 of 17. If th e 2014 Small Refinery Rule controlled83 the meaning of “extension,” the EPA would have been required to adjudicate Dakota Prairie’s petition based on whether the refine ry had average aggregate daily crude oil throughput of 75,000 barrels or less in 2014 and 2015. The EPA did not do that. Regardless, there is no challenge in the case at bar to the 2014 Small Refinery Rule. The Biofuels Coalition does not seek to nullify it. This court expresses no opinion on its validity. The only remedy so ught by the Biofuels Coalition is to vacate the EPA’s decisions granting the 2016 and 2017 hardship petitions of Cheyenne, Woods Cross, and Wynnewood. That, in turn, limits our review and the scope of any relief we may grant. Cf. Alon Refining Krotz Springs, Inc. v. EPA , 936 F.3d 628, 643 (D.C. Cir. 2019) (“[T]he pe titions for review filed in 2017 and 2018 raise no back-door challenge to the 2010 re gulation: the petitions contend that EPA in 2017 arbitrarily refused to take account of changing economic conditions, and they seek vacatur only of the 2017 order denying a new rulemaking going forward.”). The Biofuels Coalition’s petition to this court was neithermisdirected to the wrong tribunal, nor untimely by virtue of 42 U.S. C. § 7607(b). We have jurisdiction to determine whether the EPA exceeded its authority in exempting three individual refineries in Oklahoma, Utah, and Wyoming. For similar reasons, we disagree with the EPA and the Refineries that Chevron deference, rather than Skidmore review, is in order. Their argument for Chevron deference assumes not only thatthe 2014 Small Refinery Rule is up for grabs in this litigation, but also that the Rule sets forth a permissibl e construction of the term “extension.” Neither assumpti on is accurate. As discusse d, the validity of the 201484 Small Refinery Rule is not being disputed here, only th e validity of unpublished EPA orders granting small refinery petitions that were not s ubject to notice-and-comment procedures. Even if the 2014 Small Refinery Rule reasonably fills a gap in the portion of the statute defini ng a “small refinery” by thr oughput in an unspecified “calendar year” (an issue we do not decide today), see 42 U.S.C. § 7545(o)(1)(K), the Rule does not explain or resolve any am biguity with respect to the statutory definition of “extension.” We are thus bound by Sinclair , 887 F.3d at 992–93, which evaluated informal adjudications of small refinery petitions under Skidmore

. B. D ISPROPORTIONATE ECONOMIC HARDSHIP The Biofuels Coalition’s second statut ory argument takes aim at the EPA’s construction of “dispropor tionate economic hardship.” As we explained in Sinclair , “hardship” is “suffering,” “privation,” or “adversity,” i.e., something that “makes one’s life hard or difficult[.]” Id. at 996 (citations omitted). Although the EPA’s comment in the Cheyenne order that relief may be warranted “even if the refinery’s operations are not significantly impaired” may prompt ques tions about the agency’s interpretation of “hardship,” see REC2 at 636 n.10, 646 n.41, the Biofuels Coalition does not dig deeper into the meaning of “s uffering,” “privation,” or “adversity.” We assume for the sake of argumen t that at least partof the hardship the EPA sought to address, see infra § IV.C, was each refinery’s R FS compliance bill for the year in question. REC2 at 593, 596, 652, 688–89, 694. A “hardship” for a small refinery, howev er, is not enough. The hardship must be “disproportionate.” The amended Clean Air Act “commands the EPA to consider85 the disproportionate impact of the RFS program, which inherently requires a comparative evaluation.” Sinclair , 887 F.3d at 997 (emphasis in original). “The EPA must compare the effe ct of the RFS Program compliance costs on a given refinery with the economic st ate of other refineries.” Id. ; see also Hermes , 787 F.3d at 575 (reciting that “the relative cost s of compliance alone cannot demonstrate economic hardship because al l refineries face a direct cost associated with participation in the program”) . The Biofuels Coalition claims that the EPA bypassed this part of the statutory test. We are satisfied that the EPA did not di spense with a compar ative analysis in granting the Refineries’ exte nsion petitions. Seve ral metrics in th e scoring system created by the DOE in 2011 are de signed to be comparative. See 2011 DOE Study, REC1 at 490 (“[M]etrics were developed to evaluate whether ea ch of the eighteen refineries that responded to the survey an d fall within the scope of the study would suffer an economic hardship relative to an industry standard.”). For example, the Disproportional Economic Impa ct Metric of “Relative refining margin measure” is calculated as a three year av erage for all small refineries , and “[r]efineries with a negative net average margin we re scored a 10; those below the industry average were scored a 5.” Id. at 527 (emphasis omitted). Th e Disproportional Economic Impact Metric of “In a niche market” also recogni zes “higher than industry refining margins for the niche refiner.” Id. at 527 (emphasis omitted). The Disproportional Structural Impact Metric of “Renewable fuel blendi ng (% of production)” further provides that refineries which “have greaterthan the industry average of approximately 32 percent86 diesel production receive a score of 5; t hose at 40 percent dies el or above have a score of 10.” Id. at 526 (emphasis omitted). The EPA orders at issue ar e not as clear as they mi ght have been, but they contain references to one or more of these comparative factors. As to Cheyenne, the EPA highlighted the refinery’s negative net refining margin, and considered the score of “10” assigned to the refinery by the DOE for diesel production. REC2 at 643, 645. As to Woods Cross, the EP A stressed the refinery’s low net refining margin, along with blending limitations. Id. at 684. The EPA also took into account the score of “10” assigned to the refinery by th e DOE for lacking a niche market. Id. at 683. As to Wynnewood, the EPA again considered net refining margins, plus DOE rankings for diesel production and the presence or absence of a niche market. Id. at 738–40. On this record, we cannot say that the EP A eliminated the requirement of consulting industry benchmarks when eval uating the Refineries’ asser tions of disproportionate economic hardship.87 C. H ARDSHIP FROM COMPLIANCE The Biofuels Coalition’s third statutor y argument is that the EPA relied on disproportionate economic hardship suffe red by the Refineries as a result of something other than RFS co mpliance. Part (A) of 42 U.S.C. § 7545(o)(9), in connection with the “[e]xtension of the ex emption” that can be effected by a DOE study, directed the DOE to investigate “w hether compliance with the requirements” of the RFS program “would impose a dispro portionate economic hardship on small refineries.” Id. § 7545(o)(9)(A)(ii)(I). The next clau se in Part (A) corroborated that if a DOE study determined a small refinery “would be subject to a disproportionate economic hardship if required to comply” with RFS obligations, then the EPA was obligated to extend the blanket ex emption for another two years. Id. § 7545(o)(9)(A)(ii)(II). The plain language of these provisions indicates that renewable fuels compliance must be the cause of any disproportionate hardship. The EPA and the Refineries resist this construction of the law, pointing to language in Part (B) of the statute. Part (B) addresses case-by-ca se applications, and states that a small refinery may submit a petition “for an extension of the exemption under subparagraph (A) for the reason of disproportionate economic hardship.” Id. § 7545(o)(9)(B)(i). “The phr ase ‘by reason of’ denotes so me form of causation,” Husted v. A. Philip Randolph Inst. , 138 S. Ct. 1833, 1842 (2018), leading the EPA and the Refineries to argue th at small refinery petitions n eed only be “for the reason of” economic hardship, not “for th e reason of” RFS compliance.88 This suggested interpretation does not view § 7545(o)(9)(B)(i) in context. Section 7545(o)(9)(B)(i) tells the reader th at any individual exemption petition must be “for the reason of” (and thus caused by) disproportionate economic hardship, but it does not attempt to describe what mustinduce the hardship. Congress did that work in §§ 7545(o)(9)(A)(ii)( I)–(II), and then elucidated that the object of any petition under Part (B) is “an extension of the exemption under subparagraph (A)[.]” Id. § 7545(o)(9)(B)(i). Congress went on to remind the EPA that each case-by-case petition under Part (B) must be assessed in light of “the findings of the study under subparagraph (A)(ii) and other economic factors.” Id. § 7545(o)(9)(B)(ii). Far from being diluted by Part (B), the hardship-cau sed-by-compliance requirement in Part (A) works together with it. The agency orders granting the Refi neries’ extension petitions are not restricted to disproportionate economic hardship caused by RFS compliance. The EPA stated in the Woods Cross and Wynnewoo d orders that such hardship “can exist on the basis of adverse structural conditions alone,” followed by references to “[a] difficult year for the refining industry as a whole” and an “industry-wide downward trend” of lower net refining margins. RE C2 at 682, 738–39. The EPA echoed in the Cheyenne order that dispr oportionate economic hardship may be the result of “a difficult year for the in dustry as a whole.” Id. at 645. Macroeconomic conditions surely provide important context for asse ssing individual small refinery extension petitions. But hardships caused by overa ll economic conditions are different from hardships caused by compliance with st atutory renewable fuel obligations.89 Even if the EPA’s references to struct ural conditions and the industry as a whole could be characterized as inartful shorthand, the agency concluded that removing RFS obligations for Woods Cro ss in 2016 and Wynnewood in 2017 would relieve those Refineries’ disp roportionate economic hardship “in whole or in part[.]” Id. at 684, 741. This st atement is indecipherable unless the EPA had in mind hardships beyond those caused by RFS comp liance. The alleged hardships imposed on Woods Cross and Wynnewood were in th e form of RFS compliance expenses. Id. at 652, 688–89. Each of those hardship s was entirely elim inated once the EPA suspended the Refineries’ R FS obligations. The only wa y the EPA’s orders could have offered relief “in part” was if the agency considered disproportionate economic hardship occasioned by something other than complying with the amended Clean Air Act. Granting extensions of exemptions based at least in pa rt on hardships not caused by RFS compliance was outside the sc ope of the EPA’s statutory authority.
V. T HE B IOFUELS C OALITION ’ S ADDITIONAL CHALLENGES Beyond statutory constructi on issues, the Biofuels Co alition contends that the EPA’s analysis of disproportionate economi c hardship was arbitrary and capricious under the APA. See 5 U.S.C. § 706(2)(A). The Bi ofuels Coalition asserts the EPA did not recognize that (1) the Refineries’ economic status was relatively favorable, because Cheyenne had a one-time $654 million accounting write-down, Woods Cross’s three-year margin was higher than the industr y average, and Wynnewood characterized $80.4 million in scheduled turnaround costs as direct operating expenses; (2) overall RIN pur chase costs were relativel y modest, especially in90 comparison to the applicable state and local sales tax rate for each refi nery; (3) the corporate parents of the Refi neries had carryover RINs whic h could be used to offset the Refineries’ yearly RFS obligations, and regardless, the financial health of the parents should have been factored in to ea ch hardship determination; and (4) prior agency studies and other documents s howed the Refineries could recoup RFS compliance costs via hi gher consumer prices. Our review is “narrow” and “defer ential” under the APA’s “arbitrary and capricious” standard. Dep’t of Commerce v. New York , 139 S. Ct. 2551, 2569 (2019). An agency need only “exam ine the relevant data a nd articulate a satisfactory explanation for its action including a rati onal connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto.
Ins. Co. , 463 U.S. 29, 43 (1983) (citation and internal quot ation marks omitted). A decision is arbitrary and capricious if an agency “has relied on factors which Congress has not intended it to consider, en tirely failed to consider an important aspect of the problem, offered an explanati on for its decision that runs counter to the evidence before the agency, or is so implau sible that it could not be ascribed to a difference in view or the pr oduct of agency expertise.” Id. ; see also Dine Citizens Against Ruining Our Env’t v. Bernhardt , 923 F.3d 831, 839 (1 0th Cir. 2019) (adding that an agency acts arbitrarily and capriciously if it makes “a cl ear error of judgment,” but recognizing th at a “presumption of validity attaches to the agency action” and the burden of proof lies with those challe nging such action).91 This forgiving standard of review doom s almost all of the Biofuels Coalition’s objections. Right or wron g, the EPA’s overall asse ssment of the Refineries’ economic status was not arbitrary. Ther e is no evidence in the record that Cheyenne’s write-down and Wynnewood’s characterization of expenses were improper accounting maneuvers. Cheyenne suffered a loss and had other negative financial characteristics in 2016 even if the write -down is removed from the equation, and Wynnewood had certain financial features from 2016 to 2017 which were consistent with the EPA’s analysis . Woods Cross’s net refining margin may have been above average in th e aggregate, but that margin sharply declined in 2016. Nothing in the amended Clean Air Act or in existing regulations required the EPA to base its decisions on tax rates or parent company information. As a result, it is hard to see how the parental mate rials for which the Biofuels Coalition seeks judicial notice could show an abuse of discretion. In any event, with only one exception, those judicial notice motions are denied. See infra § VI. There is one objection presented by th e Biofuels Coalition, however, that warrants intervention: The EPA ignored or failed to provide reasons for deviating from prior studies showing th at RIN purchase costs do not disproportionately harm refineries which are not vertic ally integrated. This oversi ght is significant even with deferential review, in part because administrative agenci es “are free to change their existing policies as long as they provide a reasoned explanation for the change.” Encino Motorcars, LLC v. Navarro , 136 S. Ct. 2117, 2125 (2016). An agency must “display awareness that it is changi ng position” and “show that there are good92 reasons for the new policy.” FCC v. Fox Television Stations, Inc. , 556 U.S. 502, 515 (2009) (emphasis omitted). Likewise, if the new polic y “rests upon factual findings that contradict those” upon which the pr ior policy was based, the agency must provide a reasoned explanation “for disr egarding facts and circumstances that underlay or were engendere d by the prior policy.” Id. at 515–16. “It follows that an unexplained inconsistency in agency policy is a reason for holding an interpretation to be an arbitrary and capricious change from agen cy practice.” Encino Motorcars , 136 S. Ct. at 2126 (citation, brackets, and internal quotation marks omitted). The EPA has dedicated a considerable amount of attention to whether unintegrated refineries can recoup RFS compliance costs by passing them on to customers. The agency published a st udy addressing this topic in 2015. See Dallas Burkholder, EPA Office of Transporta tion and Air Quality , A Preliminary Assessment of RIN Market Dynamics, RIN Pr ices, and Their Effects (May 14, 2015) (“Burkholder Study”), REC1 at 410–40. The EPA conc luded that “[m]erchant refiners, who largely purchas e separated RINs to meet their RFS obligations,” are “recovering these costs in the sa le price of their products.” Id. at 412. The EPA acknowledged that “there is a direct and obvious cost” in obtaining RINs for merchant refiners, who “do not own fuel blending infrastructure” and “generally purchase RINs from fuel blenders[.]” Id. at 437. Still, the EPA found that refineries “are generally able to recover the cost of m eeting their RIN obligations in the price of their petroleum blendstocks.” Id. at 437–38, 440.93 The agency revisited this topic in 2017. In re sponse to multiple petitions seeking to change RFS “point of obligati on” rules, the EPA c ited the Burkholder Study and repeated that “mer chant refiners are genera lly not uniquely adversely impacted (relative to integr ated refiners).” Denial of Petitions for Rulemaking to Change the RFS Point of Obligation, EP A-420-R-17-008 (November 2017), at 22 & n.57, available at https://nepis.epa.gov (“ EPA Point of Obliga tion Denial,” last visited January 17, 2020). The EPA similarl y reiterated that while merchant refiners are “directly paying for the RINs they buy on the market, th ey are passing that cost along in the form of higher wholesal e gasoline and diesel prices.” Id. at 23; see also id. (explaining that “[e]mpirical data” s upport the argument that RIN purchasers “recover the cost of these RINs in the price of the petroleum blendstocks they sell”). The EPA reviewed studies submitted by comm enters purporting to show “an inability to ‘pass-through’ the cost of the RFS program to consumer s,” but the agency did “not find these assessme nts convincing.” Id. at 23–24. In contrast, the EPA found “compelling” other papers demonstrating that “the ability of the me rchant refiners to recover the cost of the RINs was complete (not statisti cally different than 100%) and occurred quickly (withi n 2 business days).” Id. at 25. At least through the first quarter of 2019, the EPA continued to affirm its policy position that merchant re finers pass through most orall of their RIN purchase costs. The agency reported in March of 201 9 that it “conducted an extensive analysis of RIN prices and market dynamics. Afte r studying the data, we concluded that RIN prices generally reflected market fundamentals and that obligated parties (including94 parties that purchase separated RINs) recover the cost of RINs in the market price of gasoline and diesel fuel they sell.” Modi fications to Fuel Re gulations To Provide Flexibility for E15; Modifications to R FS RIN Market Regula tions, 84 Fed. Reg. 10,584, 10,607 (proposed Mar. 21, 2019). The EPA announced the same conclusion in late 2018, adding that “[e]ven if we we re to assume the co st of acquiring RINs were not recovered by obligated parties,” a cost-to-sales ratio test “shows that the costs to small entities of the RFS standards are far less than 1 percent of the value of their sales.” EPA 2019 Standa rds, 83 Fed. Reg. at 63,742. The EPA did not analyze the possibili ty of RIN cost recoupment when it granted the Refineries’ extension petitions . There is no question that the EPA was aware of the Burkholder Study, because the agency cited it in the background section of the Cheyenne order. REC2 at 634 n. 5. The EPA has also embraced the passthrough principle in other litigation, incl uding when the agency defended its decision to retain existing point of obligation rules. See Alon Refining , 936 F.3d at 649 (“According to the EPA, refiners recove r the cost of the RINs they purchase by passing that cost along in the form of higher prices for the petrol eum based fuels they produce.”) (citation and inte rnal quotation marks omitted). Nor can there be serious debate that near-total RIN co st recovery within two busi ness days would be material to any finding of “dispropor tionate economic hardship” for a refinery. Yet the agency did not explain whether, to what extent, or why the pass-through principle was inapplicable to Cheyenne. Id. at 644–45. The EPA’s Woods Cross order contains no pass-throug h analysis either. Id. at 684–85.95 Especially glaring is the lack of a ny particularized pa ss-through analysis by the EPA for Wynnewood. Under the head er of “RIN net revenue or cost,” Wynnewood acknowledged and attempted to di stinguish the Burkholder Study in its hardship petition. Id. at 694. Despite Wynnewood’s e xplicit attempt to differentiate the Burkholder Study, however, the EPA did not address this topic when granting the refinery’s petition. The DOE did not score the category of “RINs net revenue or cost” for Wynnewood, so th e EPA could not have implic itly relied on the findings of that other agency. Id. at 740 & n.6. The EPA stated th at it generally considered “all of the information submitted by a pet itioner,” but in the process of extending Wynnewood’s exemption, the agency did not discuss any arguments for or against applying the pass-through principle. Id. at 740–41. At best, therefore, the EPA ignored its own pass-through studies and anal ysis. At worst, the EPA abandoned its prior studies and analysis sub silentio . In either scenario, the agency’s action was arbitrary and capricious. Cheyenne and Woods Cross argue in this litigation that it would have been improper for the EPA to rely on a general pass-through principle from the Burkholder Study in adjudicating specific refinery pet itions. Cheyenne and Woods Cross focus on the following passage from the EPA’s 2017 paper: While the EPA continues to believe that refiners, including merchant refiners, are generally ab le to recover the cost of RINs through prices they receive for the petroleum bl endstocks they sell, we also acknowledge that there are many di verse factors that impact each individual refiner’s prof itability and their ability to recover their full cost of production (including crude oil costs, labor costs, capital costs, regulatory and compliance costs, etc. ). These factors include, but are96 not limited to, the refine ry’s location, their access to various types of crude oil, the local demand and co mpetition for refined products. EPA Point of Obligation Denial at 27, cited in HollyFrontier Cheyenne & HollyFrontier Woods Cross Br. at viii, 53. Cheyenne and Woods Cross supplement this argument by citing Ergon-W. Va., Inc. v. EPA , 896 F.3d 600 (4th Cir. 2018), in which the United States Court of Appeals fo r the Fourth Circuit held it was arbitrary and capricious for the EPA to rely solely on the Burkholder Study without analyzing specific evidence presented by a small refinery suggesting an inability to “pass the RIN costs on to purchasers because of the local market’s low acceptance of blended diesel.” Id. at 613. We need not decide whether we agree with the Fourth Circuit’s decision, because this case involves a different issue. The problem here is not that the EPA abused its discretion by assigni ng too much weight to the Burkholder Study, or to the many other academic pape rs and studies indicating that merchant refineries typically recoup their RIN purchase cost s through higher petroleum fu el prices. Nor is the problem necessarily that th e EPA committed reversible errors in assessing the “diverse factors” potentially impacting an individual re finer’s ability to pass RIN costs on to customers. The difficulty is th at the EPA did not addr ess the applicability of the pass-through principle at all , even when one of the Refineries attempted to prove individual circumstance s warranting the principle’ s suspension. We do not know whether the pass-through studies prev iously performed or cited by the EPA matched up with each refinery’s individua l conditions (thereby precluding a finding97 of disproportionate economic hardship), b ecause the agency declined to address the issue. The EPA thus “failed to consider an important aspect of the problem,” Motor Vehicle , 463 U.S. at 43, and its silenc e ran counter to the record.
VI. MOTIONS In a pair of motions, the Biofuels Coa lition requests judicial notice of certain documents. These documents include Fo rms 10-K for the Refineries’ parent organizations, the EPA’s Point of Obligati on Denial, a brief submitted by the EPA in other litigation, memoranda from EPA and Na tional Economic Council officials, and an email thread among EPA employees. With the exception of the Point of Obligation Denial, this opinion relies on none of these materials. We therefore deny as moot the Biofuels Coaliti on’s judicial notice motions as to all but one of the proffered documents. As to the Point of Obligation Denial, we grant the request for notice to the extent necessary. The document is pub licly available on the EPA’s website. Information on a government website is subj ect to notice if, amon g other things, it is “not subject to reasonable factual dispute” and part of a source “whose accuracy cannot reasonably be questioned[.]” New Mexico ex rel. Ri chardson v. Bureau of Land Mgmt. , 565 F.3d 683, 702 n.22 (10th Cir. 2009). Although the EPA says the statements in the Point of Ob ligation Denial were made in the context of a different proceeding, the agency “does not disput e” their accuracy. EPA Judicial Notice Opposition at 9.98 Citing cases such as Fla. Power & Light Co. v. Lorion , 470 U.S. 729, 743–44 (1985), the EPA and the Refineries contend that judicial review in matters governed by the APA usually is limited to the exis ting administrative record. We do not question that general principl e. Even so, “we have rec ognized that consideration of extra-record materials is appr opriate in ‘extremely limite d’ circumstances,” such as “where the agency ignored relevant factors it should have considered[.]” Lee v. U.S.
Air Force , 354 F.3d 1229, 1242 (10th Cir. 2004) (citation omitted ). That is precisely the purpose for which we have examined th e Point of Obligation Denial. No more and no less, the document reflects a releva nt policy position that the agency did not specifically analyze when gr anting the Refineries’ extens ion petitions. Additional special circumstances are th at (1) the Biofuels Coaliti on had no opportunity to participate in compili ng the administrative record; and (2) we take judicial notice only of the existence of the st atements in the Point of Ob ligation Denial, not of their substantive truth. Finally, an organization known as th e American Fuel & Petrochemical Manufacturers (“AFPM”) asks us to consider its amicus curiae brief in support of the Refineries. AFPM describes itself as “atrade association wh ose members comprise nearly all the petroleum re fining capacity in the United States,” including several members which “operate small refine ries” receiving “exemptions” from RFS requirements. AFPM Motion at 2–3. We grant AFPM’s request. See Fed. R. App. P. 29(a)(3) (stating that a motion for leave must indicate “the m ovant’s interest” and “the reason why an amicus brief is de sirable and why the ma tters asserted are99 relevant to the disposition of the case”). The brief submitted by AFPM has been reviewed by the court and will be considered filed as of the da te of AFPM’s motion for leave. No refi ling is necessary.
VII. C ONCLUSION For the foregoing reasons, we vacate th e EPA orders granting the exemption extension petitions of Cheyenne, Woods Cr oss, and Wynnewood. We remand these matters to the EPA for further proceedings cons istent with this opinion. The Biofuels Coalition’s judicial notice motions are de nied, subject to one exception explained above. AFPM’s motion for leave to file an amicus brief is granted. To the extent consistent with this opinion, we affirm our prior confidentiality or ders in this case, meaning that any item previously placed under seal by the partie s will remain under seal.