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 Court
2 

_________________________________ 

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, Washington, DC, appearing for 

Petitioners. 

Patrick R. Jacobi, Environmental Defense Section, United States Department of Justice, 

Denver, Colorado (Jeffrey Bossert Clark, Assistant Attorney General, and Susan Stahle, 

Office of the General Counsel, United States 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, Washington, DC, appearing for Respondents 

HollyFrontier Cheyenne Refining, LLC, HollyFrontier Refining & Marketing, LLC, and 

HollyFrontier Woods Cross Refining, LLC. 

Brian H. Potts and Jonathan G. Hardin, Perkins Coie LLP, Madison, Wisconsin, on the 

briefs for Respondent Wynnewood Refining Company, LLC. 

Richard S. Moskowitz, American Fuel & Pertrochemical 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. THE CLEAN AIR ACT, RENEWABLE FUELS, AND SMALL REFINERIES ................... 7

A. LEGISLATIVE AND EXECUTIVE HISTORY ................................................. 7

B. REGULATIONS AND POST-ENACTMENT HISTORY .................................. 17

C. THE EXEMPTION EXTENSION PETITIONS ............................................... 30

1. CHEYENNE .............................................................................. 32

2. WOODS CROSS ........................................................................ 35

3. WYNNEWOOD .......................................................................... 37

II. THE BIOFUELS COALITION’S STANDING TO SUE ............................................... 38

III. OTHER JURISDICTIONAL ISSUES ....................................................................... 58

A. TIMELINESS ......................................................................................... 58

B. RIPENESS ............................................................................................. 61

IV. THE BIOFUELS COALITION’S STATUTORY CONSTRUCTION CHALLENGES.......... 64

A. EXTENSION OF EXEMPTION .................................................................. 67

1. TEXTUAL ANALYSIS ................................................................ 69

2. THE 2014 SMALL REFINERY RULE ........................................... 79

B. DISPROPORTIONATE ECONOMIC HARDSHIP .......................................... 84

C. HARDSHIP FROM COMPLIANCE ............................................................. 87

V. THE BIOFUELS COALITION’S ADDITIONAL CHALLENGES .................................. 89

VI. MOTIONS ......................................................................................................... 97
4 

VII. CONCLUSION ................................................................................................... 99

 
5 

In the mid-2000s, Congress launched an effort to amend the Clean Air Act 

(“CAA”) to try to reduce the nation’s dependence on fossil fuels. The resulting 

legislation set ambitious targets for replacing specified volumes of crude oil fuel with 

renewable fuels. The legislation created several exemptions from this “biofuels” 

mandate, including a temporary exemption for small refineries if compliance in a 

given year would impose disproportionate economic hardship. The United States 

Environmental Protection Agency (“EPA” or “agency”) is charged with 

implementing the legislation, and the agency has promulgated numerous regulations 

for that purpose. 

At issue here are three EPA 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 challenged 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 collectively as the Biofuels Coalition, and their 

petition to this court raises several important questions. The EPA opposes the 

Biofuels Coalition’s appeal. So do the three recipients of the small refinery 

extensions, who have been granted leave to intervene. 

As a preliminary matter, we conclude that the Biofuels Coalition has standing 

to sue. Constituents of the Biofuels Coalition have established an injury in fact in the 

form of lower prices, lower revenues, or increased competition with respect to the 

renewable fuels those constituents market and sell. For standing purposes, this injury 

is fairly traceable to the EPA’s decisions to grant extensions of the three small 
6 

refinery exemptions in question. A favorable judicial decision is likely to redress at 

least some of this injury, assuming, as we must, that the EPA will continue to follow 

Congress’s directive to implement and flesh out the renewable fuels program. 

We also conclude that this court otherwise has jurisdiction 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 Act contains a 60-day filing deadline with 

jurisdictional implications, but that deadline is triggered when final agency action 

appears in the Federal Register. The EPA never published the extension orders at 

issue. And although members of the Biofuels Coalition were not invited to 

participate in the proceedings that generated the orders, the 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 amended 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 exemption in the years preceding its petition. The EPA 

exceeded its statutory authority in granting those petitions because 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 something 
7 

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 the statute, but we reject that argument. 

Once we move from the topic of statutory authority, we disagree with almost 

all of the Biofuels Coalition’s assertions that the EPA acted arbitrarily and 

capriciously in granting the extension petitions. 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 charging higher prices for the fuels 

they sell. The EPA has studied and staked out a policy position on this issue. One of 

the refineries expressly raised the issue in its extension petition. It was not 

reasonable for the agency to ignore it. 

I. THE CLEAN AIR ACT, RENEWABLE FUELS, AND SMALL REFINERIES

As background for our textual analysis, we briefly summarize the legislative 

and executive history of the pertinent amendments to the Clean Air Act, along with 

the law’s provisions relating to small refineries. We summarize EPA regulations and 

post-enactment legislative and executive branch pronouncements concerning these 

small refinery provisions as well. We then describe the orders issued by the EPA 

granting the three small refinery extension petitions at the heart of this case. 

A. LEGISLATIVE AND EXECUTIVE HISTORY

Congress changed the “Renewable Content of Gasoline” when 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 Policy Act directed the EPA to promulgate 
8 

regulations to ensure that gasoline sold or introduced into commerce in the United 

States included rising amounts of renewable fuel, going from four billion gallons in 

2006 to seven and a half billion 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 created a “Credit Program” under which fuel 

refiners, blenders, or importers could buy or sell compliance credits. Id. § 

1501(o)(5). The Energy Policy Act contained a “Temporary Exemption” until 

calendar year 2011 for small refineries, defined as those “for which the average 

aggregate daily crude oil throughput for a calendar year (as determined by dividing 

the aggregate throughput for the calendar year by the number 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 study by the Department of Energy (“DOE”) 

as suffering “disproportionate economic impact if required to comply[.]” Id. §§ 

1501(o)(9)(A)(ii)(I)–(II). 

Congressional reports on the proposals that became the Energy Policy Act 

foreshadowed these provisions. A House report stated that H.R. 1640 would increase 

the volume of renewable fuels from 3.1 billion gallons in 2005 to 5.0 billion gallons 

in 2012, and “would allow refineries, blenders, and importers to accumulate and trade 

credits[.]” H.R. Rep. No. 109-215, pt. 1, at 221, 270 (2005). A Senate report stated 

that a “major provision” of S. 10 would increase the volume of renewable fuels from 

four billion gallons in 2006 to eight billion gallons in 2012, with provisions relating 
9 

to “participation by small refiners” and “a fuel producer credit 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 profound concerns in the Congress over the nation’s energy 

security. . . . Coupled with those concerns is the recognition that meeting demand 

must be accomplished in an environmentally sound manner.”); H.R. Rep. No. 109-

215, pt. 1, at 169 (“Energy security is critical in a world of growing demand and 

regional political instability. Dependence on any single source of energy, especially 

from a foreign country, leaves America vulnerable to price shocks and supply 

shortages.”). 

President George W. Bush signed the Energy 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 secure.” 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 ethanol and biodiesel. The bill includes a 

flexible, cost-effective renewable fuel standard that will double the amount of ethanol 

and biodiesel in our fuel supply over the next 7 years.” Id. at 1264–65, S22. The 

President added that “[u]sing ethanol and biodiesel will leave our air cleaner. And 

every time we use a home-grown fuel, particularly these, we’re going to be helping 
10 

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 further 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. Those changes and others are now reflected in 

section 7545(o) of Title 42. The current version of the statute increases renewable 

fuel obligations in at least four categories: (1) renewable fuel, defined as “fuel that is 

produced from renewable biomass and that is used to replace or reduce 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, generally defined as renewable fuel “other 

than ethanol derived from corn 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 from renewable biomass” with lifecycle greenhouse gas 

emissions at least 60 percent less than baseline, is targeted to rise from 0.1 billion 

gallons in 2010 to 16 billion gallons in 2022, id. §§ 7545(o)(1)(E), 

 1

 The statute defines “baseline lifecycle greenhouse gas emissions” as “the 

average lifecycle greenhouse gas emissions,” as determined by the EPA, for 

“gasoline or diesel (whichever is being replaced by the renewable fuel) sold or 

distributed as transportation 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” with lifecycle greenhouse gas 

emissions at least 50 percent less than baseline, was 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 renewable fuel produced from new facilities 

commencing production after December 19, 2007, the law states that such fuel must 

achieve “at least a 20 percent 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, after notice and comment, “any other anthropogenicallyemitted gas” determined “to contribute 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 adjusted to account for their relative global 

warming potential.” Id.

The statute directs the EPA to issue regulations to ensure that the requirements 

of the law are met. Id. § 7545(o)(2)(A)(iii). The statute also directs the EPA, after 

receiving an estimate of renewable fuel volumes from the Energy Information 

Administration (“EIA”) by October 31 of each year from 2005 through 2021, to 
12 

“determine and publish in the Federal Register” 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 percentage” 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 estimates 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 replicate those percentages on an individual basis. The law 

states that yearly renewable fuel obligations are “applicable 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 current version of the statute envisions the 

generation of credits for refined, blended, or imported gasoline with greater-thanrequired quantities of renewable fuel; for the use or transfer to another person of such 

credits; and for carrying forward a renewable fuel deficit in certain circumstances (a 

deficit that must be addressed “in the calendar year following 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 Act also continued to make available a 

small refinery exemption. The definition of “small refinery” still looks to whether a 
13 

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 minimum extension of the 

exemption of two years for any such refinery determined to be subject to a 

disproportionate economic hardship by a DOE study to be conducted no later than 

2008. Id. §§ 7505(o)(9)(A)(i)–(ii). Small refineries 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 “make adjustments” when determining the renewable fuel 

volume percentages for an upcoming calendar year to “account for the use of 

renewable fuel during the previous calendar 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 substantially increased renewable fuel requirements to 

promote energy independence and environmental stewardship. In the words of one 

legislator: 

To help reduce our dependence on imported oil, and on oil 

consumption, this bill strengthens the renewable fuels standard. It sets 

clear benchmarks for higher levels of production of biofuels made from 

corn as well as other feedstocks, including soybean oil, switchgrass, and 

other sources of energy that will be developed in the future. With this 

bill we will shift some of our energy 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 and 36 billion gallons by 2022. That 

represents a major advance in our commitment 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. Johnson) (commenting that “[t]his 

bipartisan bill builds on the success of the Energy Policy Act of 2005, which 

authorized the first nationwide renewable fuel standard, RFS,” that the bill will ramp 

up “the amount of ethanol and cellulosic ethanol produced in this country so that by 

2020 the United States will produce a minimum of 36 billion gallons of renewable 

fuels,” and that “[w]e are going to produce more fuel from 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. Cardin) (“H.R. 6 raises the 

annual requirement for the amount of renewable fuels used in cars and trucks to 36 

billion gallons by 2022. H.R. 6 makes a historic commitment to develop cellulosic 

ethanol by requiring that the United States produce 21 billion gallons of advanced 

biofuels, like cellulosic ethanol. Homegrown renewable fuels will replace the 

equivalent of all the oil we import from the Middle East today.”); 153 Cong. Rec. 

S15004, S15008 (daily ed. Dec. 7, 2007) (statement of Sen. Reid) (“This legislation 

makes an unprecedented commitment to American-grown biofuels by increasing the 

renewable fuels standard to 36 billion gallons by the year 2022, which will not just 

reduce our addiction to oil but create American jobs as well.”). 

Certain members of the House of Representatives likewise embraced the view 

that the substantial increase in renewable fuel utilization envisioned by the Energy 

Independence and Security Act would produce geopolitical and environmental 
15 

benefits. 153 Cong. Rec. H16659, H16744–45 (daily ed. Dec. 18, 2007) (statement 

of Rep. Jackson-Lee) (“[T]ransitioning from foreign oil to ethanol will protect our 

environment from dangerous carbon and greenhouse gas emissions. With its 

commitment to American biofuels, the legislation calls for a significant increase in 

the Renewable Fuels Standard. It encourages the diversification of American energy 

crops thus ensuring that biodiesel 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 fuels produced and used in motor vehicles. 

The new RFS has specific requirements for the use of biodiesel and cellulosic sources 

to ensure that these ethanol sources also advance along with corn-based ethanol. 

Furthermore, the bill includes critical environmental safeguards to ensure that the 

growth of homegrown fuels helps to reduce carbon emissions.”); 153 Cong. Rec. 

H14434, H14437 (daily ed. Dec. 6, 2007) (statement 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 provided by the domestic 

production of biofuels,” providing a pathway “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) (statement of Sen. Inhofe) 

(“The renewable fuels standard increase is going to mandate 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 make it that much worse. There are other 

problems with that too, with ethanol’s effect on food prices: economic sustainability, 

transportation infrastructure needs, the water usage in that process.”); 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. This initiative is extremely 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, and President George W. Bush signed the 

Energy Independence and Security Act into law. The President noted that when he 

endorsed the Energy Policy Act two years earlier, he understood “we needed to go 
17 

even further.” Statement by President George 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 toward reducing our dependence on oil, 

confronting global climate change, expanding the production of renewable fuels and 

giving future generations of our country a nation that is stronger, cleaner and more 

secure.” Id. He declared that “[t]he bill I sign today takes a significant step because 

it will require fuel producers to use at least 36 billion gallons of biofuel in 2022. 

This is nearly a fivefold increase over current levels. It will help us diversify our 

energy supplies and reduce our dependence on oil. It’s an important part of this 

legislation, and I thank the members of Congress for your wisdom.” Id. at S26. 

B. REGULATIONS AND POST-ENACTMENT HISTORY

The EPA has issued a number of regulations to implement the renewable fuels 

program. Although the statute 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 refiners and importers. 40 

C.F.R. § 80.1406(a)(1). The EPA has published the equations used to calculate the 

annual renewable fuel percentage standards, id. § 80.1405(c), along with the formulas 

used to determine individual Renewable Volume 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 that party, and then adding any deficit 

carryover from the previous year. Id.
18 

The EPA administers credits using a device known as a Renewable 

Identification Number (“RIN”). Id. § 80.1401. The regulations 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 blending 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 blending or purchase typically may 

only be used to demonstrate compliance “for the 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 considered “expired” if not used 

during the year of its creation or the year 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 the small refinery exemption as well. 

The regulations recognized an exemption in 2010 for each entity 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 would impose disproportionate economic 

hardship. Id. § 80.1441(e)(1). The regulations indicate that a small refinery may 

petition for “an extension” of the exemption “at any time,” and that such a petition 
19 

must “specify the factors that demonstrate a disproportionate economic hardship;” 

provide a detailed discussion regarding “the hardship the refinery would face in 

producing” compliant transportation fuel; and identify “the date the refiner 

anticipates that compliance with the requirements can reasonably be achieved[.]” Id.

§ 80.1441(e)(2)(i). In 2014, the EPA amended the regulations to change the 

definition of a small refinery (the “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 calendar 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 which an exemption is sought. Failure to meet the 

definition of small refinery for any calendar year for which an 

exemption was granted would invalidate 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 Energy Independence and Security Act. E.g.,

Renewable Fuel Standard Program: Standards 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 stated goals of the Energy Independence and 

Security Act included moving the country toward “greater energy independence and 

security [and] to increase 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 order to reduce greenhouse gases (GHGs) and increase 

energy security.” Renewable Fuel Standard Program: Standards for 2014, 2015 and 

2016 and Biomass-Based Diesel Volume for 2017 (“EPA 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 targets “nevertheless will 

ensure these renewable fuels will continue to play a critical role as a complement to 

our petroleum-based fuels.” EPA 2018 Standards, 82 Fed. Reg. at 58,487. Starting 

no later than 2015, for instance, 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 adjustments to the statutory volume targets in 

recognition of the constraints that exist today,”2

 while at the same time retaining 

standards sufficient to “drive growth in renewable fuels, particularly advanced 

biofuels which achieve the lowest lifecycle GHG emissions.” Id. at 77,423; see also

Renewable Fuel Standard Program: Standards for 2017 and Biomass-Based Diesel 

 2

 The statute contains several qualifications 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 percentages may be adjusted); id. §§ 7545(o)(7)(A)–(C), 

(F) (allowing waivers based on severe harm to the economy or environment, or on 

inadequate domestic supply); id. §§ 7545(o)(7)(D)–(E) (setting forth conditions 

under which volumes of cellulosic biofuel and biomass-based 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 intent of increasing renewable 

fuel use over time in order to reduce lifecycle GHG emissions of transportation fuels 

and increase energy security, while at the same time accounting for real-world 

challenges that have slowed progress toward these goals.”). 

The EPA’s stated aim in harmonizing real-world constraints with aggressive 

statutory renewable fuel targets 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 volumes of renewable fuels, 

with a focus on cellulosic and other advanced renewable fuels, into the marketplace. 

Congress made the decision that this is an appropriate policy objective, and put in 

place a program to achieve 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 intended the RFS program to create 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 and prioritized that growth as occurring principally in 

advanced biofuels;” and (2) “[i]t is apparent, therefore, that Congress intended 

changes to the extent and pace of growth of renewable fuel use that would be 

unlikely to occur absent the new program.” Id. at 77,432. 

The EPA has also reviewed how overall targets 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 four 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 standards 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 party produces or imports during the 

specified calendar year to determine 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 appropriate 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 standard-setting documents confirm that 

“Congress provided a temporary exemption” which could be extended beyond 2010 

“based either on the results of a required DOE study, or based on an EPA 

determination of ‘disproportionate economic hardship’ on a case-by-case basis in 

response to small refinery petitions.” EPA 2018 Standards, 82 Fed. Reg. at 58,523; 

see also Regulation of Fuels and Fuel Additives: 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 the 
23 

exemption beyond 2010.”). As stated by the EPA, Congress “spoke directly to the 

relief that EPA may provide for small refineries,” and “limited 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 disproportionate economic hardship under the RFS 

program.” Regulation of Fuels 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 availability of RINs and EPA’s ability to grant relief on a 

case-by-case basis.” Id. at 1,339–40. The EPA explained 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 obligated parties,” and “there was no small 

refiner/refinery volume adjustment 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 assess the economic condition of the small 

refining sector, take into account regional factors or accurately 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 comment 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 RFS requirements, study small refinery impacts and regional 

dynamics by [Petroleum Administration for Defense District, or] PADD, and reassess 

the accuracy of small refinery compliance costs through the purchase of renewable 

fuel credits.” Id. (brackets added). A House conference 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. Rep. 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 participate in the program. As a result, these refineries will be 

exempt from being obligated parties for a minimum of two additional years, 2011 and 

2012.” EPA 2012 Standards, 77 Fed. Reg. at 49,821 (footnotes 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.epa.gov/fuels-registration-reporting-and-compliancehelp/rfs-small-refinery-exemptions (“Small Refinery Exemptions, EPA Website,” last 

visited January 17, 2020). The EPA cites 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 survey small refineries. Small Refinery 

Exemption Study: An Investigation into Disproportionate Economic Hardship (“2011 

DOE Study”), U.S. Department of Energy (Mar. 2011, redacted), Administrative 

Record volume 1 (“REC1”) at 483, 489–90. With those survey results in hand, the 

DOE concluded that “[d]isproportionate economic hardship must encompass two 

broad components: a high cost of compliance relative to the industry 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 scoring for “Disproportionate Structural Impact 

Metrics” (with categories for access to capital/credit, other business lines besides 

refining and marketing, local market acceptance of renewables, percentage of diesel 

production, and exceptional state regulations) and “Disproportionate Economic 

Impact Metrics” (with categories for relative refining margin 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 contains scoring for “Viability 

Metrics” (with categories for compliance costs eliminating efficiency gains, 

individual special events, and compliance costs 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 broad components” for disproportionate 

economic hardship – “a high cost of compliance relative to the industry average 

disproportionate impacts” and “an effect sufficient to cause significant impairment of 

the refinery operations viability” – the explanatory statement provided that if the 

Secretary of Energy “finds that either of these 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. Rec. H9693, H10105 (daily ed. Dec. 17, 

2015). The explanatory statement further provided that a small refinery with profits 

sufficient to cover RFS compliance costs might nonetheless be subject to a 

disproportionate economic hardship: 

[T]he dramatic rise in RIN prices has amplified RFS compliance and 

competitive disparities, especially where unique regional factors exist, 

including high diesel demand, no export access, and limited biodiesel 

infrastructure and production. In response to recent petitions, the 

Secretary determined that the RFS program would impose a 

disproportionate economic and structural impact on several small 

refineries. Despite this determination, the Secretary did not 

recommend, and EPA did not provide, any RFS relief because it 

determined the refineries were profitable 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 profit 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 appropriations for various agencies contained similar 

observations. The Senate report 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 notwithstanding the disproportionate 

economic impact.” S. Rep. No. 114-281, at 70 (2016). The report indicated that 

“[t]his is inconsistent with congressional intent because the statute does not 

contemplate that a small refinery would only be able to obtain an exemption by 

showing that the RFS program threatens its viability. Congress explicitly authorized 

the Agency to grant small refinery hardship relief 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 explanatory statement on an agreement regarding 

appropriations amendments, the House echoed that “[t]he agreement includes the 

directive contained in Senate Report 114-281 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 granting more petitions to extend the small 

refinery exemption. Table 2 on the EPA’s website indicates that while the agency 

granted 23 of 41 extension petitions from 2013-2015 (reflecting an approval rate of 
28 

approximately 56%, as two petitions were declared ineligible or withdrawn), the 

agency granted 85 of 94 extension petitions from 2016-2018 (reflecting an approval 

rate of approximately 90%, as five petitions were declared ineligible 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 Website (data as of January 16, 2020); see also

Renewable Fuel Standard Program: Standards 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 response to comments suggesting increased disclosure of “data 

related to the RIN market,” the EPA “made additional information available through 

our public website,” including “the number of small refinery 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 amended Clean Air Act’s renewable fuels targets. Table 1 on the 
29 

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 billion exempted RINs in 2018): 

Compliance 

Year 

Estimated Volumes of Gasoline 

and Diesel Exempted (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 extend 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 account for the exemptions. The EPA has 

followed this policy at least from 2011 through 2018, reasoning that “the Act is best 

interpreted to require issuance of a single annual standard in November that is 

applicable in the following calendar year, thereby providing advance notice and 

certainty to obligated parties regarding their regulatory requirements.” Regulation of 

Fuels and Fuel Additives: 2011 Renewable Fuel 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 waivers issued to small refineries or refiners would be 
30 

inconsistent with the statutory text, and would introduce an undesirable level of 

uncertainty for obligated parties.” Id.; see also EPA 2018 Standards, 82 Fed. Reg. at 

58,523 (“EPA is maintaining its approach that any exemptions for 2018 that are 

granted after the final rule is released will not be reflected in the percentage standards 

that apply to all gasoline and diesel produced or imported in 2018.”). The EPA 

recognizes that “any exemption for a small refinery will result in a proportionally 

higher percentage standard for remaining obligated parties,” and that “this will affect 

the degree to which individual obligated parties can acquire sufficient RINs for 

compliance through blending ethanol into gasoline that they produce.” EPA 2011 

Standards, 75 Fed. Reg. at 76,805. 

C. THE EXEMPTION EXTENSION PETITIONS

The EPA is required to consider DOE studies and other economic factors when 

assessing small refinery petitions. 42 U.S.C. § 7545(o)(9)(B)(ii). Operating within 

this framework, the EPA received and evaluated the three extension petitions at issue 

in this case. HollyFrontier Cheyenne Refining LLC (“Cheyenne”) submitted a 

petition in March 2017. Administrative Record 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”) are discussed in more detail below. 

As a prelude, we describe how information identified by the parties as 

confidential has been handled. As noted infra in § II, the Refineries requested 
31 

confidentiality when they submitted their extension petitions to the EPA. The parties 

continued on appeal to seek confidential treatment of certain business information. 

In a series of orders, this court provisionally granted the parties’ request for a 

protective order, along with the parties’ requests to file particular briefs and record 

materials under seal. In each of those orders, the court explained that it retained 

discretion to revisit the issues. At the court’s prompting, the Refineries later 

indicated whether they objected to the disclosure of several specific facts. 

The court is honoring most – but not all – 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 privileged or confidential “trade secrets and commercial or 

financial information,” as well as 40 C.F.R. § 2.208, which states that “business 

information is entitled to confidential treatment” if various requirements are met. 

Any instance in this opinion in which the court parts company with the parties on 

confidentiality is based both on these standards and on the “strong presumption” 

under the common law “in favor 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 countervailing interests heavily outweigh the public 

interests in access”) (citation and internal quotation marks omitted). 

 
32 

1. CHEYENNE

According to the petition submitted on behalf of Cheyenne in 2017, the 

refinery employs approximately 300 people in Wyoming. REC2 at 590. Because it 

was identified in the DOE’s 2011 study as being subject 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 granted an unopposed motion by the EPA to vacate the denial 

and remand the matter to the agency for further proceedings consistent with Sinclair 

Wyo. Refining Co. v. EPA, 874 F.3d 1159 (10th Cir. 2017). The parties have not 

discussed the subsequent proceedings, but we assume for purposes of this opinion 

that Cheyenne’s 2015 petition was granted on remand. See infra § II (summarizing 

post-Sinclair events in the context of redressability). 

Cheyenne contended in its 2017 petition that renewable fuel compliance in 

2016 would impose disproportionate economic hardship. Cheyenne emphasized that 

it focused on diesel (normally blended with less renewable fuel than gasoline) and 

otherwise had limited blending abilities, in contrast to some “larger, more 

competitive refineries.” REC2 at 592–93. Cheyenne argued that “[t]he cost of RIN 

purchases and the poor economics of biodiesel blending threaten the viability of the 

Cheyenne refinery[.]” Id. at 593. Cheyenne described the expenses it believed 

would arise out of RFS compliance in 2016, consisting of blending costs and RIN 
33 

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 criteria and 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 the structural and economic metric and a 

score of 0.0 in the viability metric.” Id. at 628. The DOE concluded that “the 

HollyFrontier Cheyenne refinery had positive refining margins and RFS compliance 

would not appear, based on the data we analyzed, to threaten the 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 acknowledged that “it has been 

found that a refinery does not experience disproportionate economic hardship simply 

because it may need to purchase a significant percentage of its RINs for compliance 

from other parties, even though RIN prices have increased since the DOE study, 

because the RIN prices lead to higher sales 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 the Cheyenne Refinery.” Id.

at 645. After summarizing Cheyenne’s financial history, however, id. at 637–42, the 

EPA determined that the refinery “would suffer a disproportionate economic hardship 
34 

if it had to comply with the RFS obligations for 2016 and should be granted full 

relief.” Id. at 646. 

In granting the petition, the EPA reasoned that “for a refinery like the 

Cheyenne Refinery, its disproportionate 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 financial performance showed the refinery would 

disproportionately suffer “from compliance with RFS obligations.” Id. The EPA 

discussed Cheyenne’s financial performance 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 Cheyenne’s petition, the EPA acknowledged it 

was generally altering its methodology. The agency stated “[i]n prior decisions, EPA 

considered that a small refinery could not 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 may help establish disproportionate economic hardship, 

compliance with RFS obligations may impose a disproportionate economic hardship 

when it is disproportionately difficult for a refinery to comply with its RFS 

obligations – even if the refinery’s operations are not significantly impaired.” Id. at 

636 n.10, 646 n.41. 

 
35 

2. WOODS CROSS

The 2017 petition submitted on behalf of Woods Cross stated 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 compliance with RFS in 2016 would impose disproportionate 

economic hardship because the refinery has no other lines of business and cannot 

blend the full amount of required renewable fuel, because “there is still some 

resistance to the acceptance of biodiesel” in Woods Cross’s market, and because 

buying RINs “adds a heavy financial burden to the refinery and renders it 

economically inefficient relative to its competition.” Id. at 649–52. Woods Cross 

described what it believed its compliance 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 structural 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 refining margins while making significant 

refinery investments, thus RFS compliance would not appear, based on the data we 

analyzed, to threaten the refinery’s economic viability.” Id. Because Woods Cross 

scored above 1.0 in the first metric, the 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 extension 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 agency recounted, however, that “prior to this ruling, EPA 

had already changed its approach for the 2016 small refinery petitions issued in May 

2017.” REC2 at 682. The agency clarified that it had determined disproportionate 

economic hardship “can exist on the basis of adverse structural conditions alone. A 

difficult year for the refining industry as a whole may exacerbate economic problems 

for small refineries that face disproportionate impacts.” Id.; see also id. (stating that 

the “industry-wide downward trend” of lower net refining margins “can result in 

tangible effects on small refineries with adverse structural conditions”). 

The EPA concluded that in combination with other factors, unfavorable 

structural conditions for Woods Cross warranted “100% relief.” Id. at 682, 684. The 

EPA drew attention to limitations on the refinery’s blending capabilities, and 

addressed Woods Cross’s net refining margins and financial performance in 2015 and 

2016. Id. at 684. This analysis led the EPA to decide that “the Woods Cross 

Refinery will experience [disproportionate economic hardship] that can be relieved in 

whole or in part by removing its RFS obligations for 2016.” Id. (brackets added). 
37 

3. WYNNEWOOD

The petition submitted on behalf of Wynnewood 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 that Wynnewood received an extension 

of the blanket exemption in 2011 and 2012, but “has not received hardship relief 

since 2012.” Id. at 687. Wynnewood described what it believed RFS compliance 

costs would be, and compared those costs to the refinery’s other operating expenses. 

Id. at 688–89, 694. In light of the refinery’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 lines 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) the presence or absence of a niche market; and (7) the possibility 

of “passing through” RIN expenses to customers. Id. at 689–96. As to viability, 

Wynnewood again referenced the metric of average net refining margin, and gave the 

EPA an assessment of competitiveness 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, and viability metrics. Id. The DOE stated that “the refinery 
38 

has positive refining margins and RFS compliance would not appear, based on the 

data we analyzed, to threaten the refinery’s economic viability.” Id. Nonetheless, 

based on structural and economic factors, the DOE suggested that the EPA grant a 

partial extension of the small 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 [disproportionate economic hardship] exists only 

when a refinery experiences both disproportionate impacts and viability impairment.” 

Id. at 738 (brackets added). The EPA continued that in response to concerns that the 

threshold for establishing disproportionate economic hardship was “too stringent,” 

Congress clarified that such hardship “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 obligations for 2017.” Id.

II. THE BIOFUELS COALITION’S STANDING TO SUE
39 

Although the EPA does not challenge the Biofuels Coalition’s standing to sue, 

the Refineries do. Addressing those arguments requires an understanding of the four 

organizations that make up the Biofuels Coalition. The first organization is the 

Renewable Fuels Association (“RFA”), a trade 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 are responsible for the production 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, the 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 members are similar, but even more focused 

on feedstocks. The third organization is the National Farmers Union (“NFU”), an 

advocacy group for “family farmers, ranchers and rural communities[.]” Roger 

Johnson Declaration (“Johnson Decl.”) ¶ 2. According to the group’s President, 
40 

“NFU’s members include family farmers and 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 produce biomass-based diesel.” Id. ¶ 5. The fourth 

organization is the National Corn Growers Association (“NCGA”). NCGA’s Chief 

Executive Officer declares that the association “represents more than 40,000 duespaying corn farmers nationwide and more than 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 reiterates that “[c]orn 

is used as a feedstock to make ethanol[.]” Id. ¶ 6. 

The Constitution specifies that the “judicial Power of the United States” 

extends only to “Cases” and “Controversies.” U.S. Const. art. III, §§ 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 doctrine “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 federal lawsuit, the law of Article III standing “serves to 

prevent the judicial process from being used to usurp the powers of the political 

branches, and confines the federal courts to a properly judicial role.” Spokeo, 136 S. 

Ct. at 1547 (citations and internal quotation marks omitted). 
41 

The “irreducible constitutional minimum” of standing is threefold. Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560 (1992). “The 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 redressed by a favorable judicial decision.” 

Spokeo, 136 S. Ct. at 1547. An injury in fact must be not only “concrete and 

particularized,” but also “actual or imminent,” as opposed to “conjectural” or 

“hypothetical.” Lujan, 504 U.S. at 560 (citations and internal quotation marks 

omitted). “Although the ‘traceability’ of a plaintiff’s harm to the defendant’s actions 

need not rise to the level of proximate causation, Article III does require proof of a 

substantial likelihood that the 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 favorable court judgment is likely to relieve the party’s 

injury.” WildEarth Guardians v. Pub. Serv. Comm’n of Colo., 690 F.3d 1174, 1182 

(10th Cir. 2012) (citation omitted). 

“The party invoking federal jurisdiction bears the burden of establishing” 

standing. Lujan, 504 U.S. at 561. Each element “must be supported in the same way 

as any other matter on which the plaintiff bears the burden of proof, i.e., with the 

manner and degree of evidence required at the successive stages of the litigation.” 

Id. On a direct appeal from an administrative decision, the complainant “must 

produce evidence on each element of standing 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 contests these facts, the 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 federal court jurisdiction must make a further 

showing. The association must demonstrate that “its members would otherwise have 

standing to sue in their own right;” “the interests it seeks to protect are germane to 

the organization’s purpose;” and “neither the claim asserted nor the relief requested 

requires the participation of individual members in the lawsuit.” Hunt v. Wash. State 

Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). Because the Refineries in this 

case do not challenge the latter two components, 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 stake in the outcome of the controversy as 

to assure that concrete adverseness which sharpens the presentation of issues upon 

which the court so largely depends for illumination.” Massachusetts v. EPA, 549 

U.S. 497, 517 (2007) (citation and internal quotation marks omitted). We also 

recognize that “when the plaintiff is not himself the object of the government action 

or inaction he challenges, standing is not precluded, but it is ordinarily substantially 

more difficult to establish.” Summers, 555 U.S. at 494 (citation and internal 

quotation marks omitted). 

The Biofuels Coalition principally relies on an affidavit and a report from 

RFA’s chief economist to prove standing. Scott Richman Declaration (“Richman 
43 

Decl.”) ¶¶ 1–5. The economist 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 terms of all exempted volumes. Scott Richman Report 

(“Richman Report”) at 3, 12–13, 17. He observes that the EPA reinstated the RINs 

Cheyenne and Woods Cross had previously retired for compliance purposes in 2016, 

and he appears to assume the agency simply relieved Wynnewood of its RIN 

retirement obligation in 2017. Richman Decl. ¶¶ 12, 23. He then opines that the 

Refineries can “use these reinstated 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 maintains that the Refineries’ 

sale or use of these RINs to establish compliance inflicts “economic harm” on 

members of the Biofuels Coalition, because obligated parties use such RINs “instead 

of blending ethanol or obtaining RINs representing additional 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 exemption 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 are 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 9 
44 

& n.10 (same). This, according to the economist, has “contributed to reduced 

demand and lower per-gallon prices for ethanol. These factors have resulted in lower 

revenues received by RFA’s ethanol producing members.” Richman Decl. ¶ 5; 

Richman Report at 1. In particular, he states that extensions 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 blend rate resulted in 

an estimated $233 million revenue reduction 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 these numbers are conservative. He reasons that the 

foregoing numbers understate the economic injury to the Biofuels Coalition because 

“the reduction in demand has forced RFA members and other producers to sell 

ethanol at lower prices than that which 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 been $0.08 per gallon higher in February 2018 

absent these extensions, and $0.34 per gallon higher by June 2018 “given the 

continued effect on consumption[.]” Richman Decl. ¶ 20; Richman Report at 2–3, 

19. “Without adjusting for any possible increase in production due to increased 
45 

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 RFA members – to the Refineries’ exemptions. Richman 

Decl. ¶ 21; Richman Report at 3, 20–21. 

The Refineries do not meaningfully dispute that this evidence 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 amount of 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 amount 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 this description. The alleged losses are 

concrete in that they are quantified in dollars. The alleged losses are particularized in 

that they affect each Biofuels Coalition member who produces ethanol or ethanol 

feedstocks. 

Certain Biofuels Coalition members also have cognizable injuries as 

competitors. Probable economic injury resulting from governmental actions which 

“alter competitive conditions” can constitute an injury in fact. Clinton v. City of 

N.Y., 524 U.S. 417, 432-33 (1998) (citation omitted). Put another way, “economic 
46 

actors suffer constitutional injury 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 competitor standing “relies on 

economic logic to conclude that a plaintiff will likely suffer an injury-in-fact when 

the [defendant] acts in a way that increases competition or aids the plaintiff’s 

competitors”) (citation omitted, brackets in original). 

The record reflects at least some degree of competition between the Refineries 

and certain members of the Biofuels Coalition. 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 traditional 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 gasoline.”); 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 compete with other industries that provide 

alternative means to satisfy the energy and fuel requirements of our industrial, 

commercial and individual consumers,” and “[t]he more successful these alternatives 

become” the greater the impact on “pricing and demand for our products and 
47 

profitability”). The EPA’s decision to extend the small refinery exemption relieves 

the Refineries from having to pay for blending or RINs associated with renewable 

fuels, including the types of fuel generated by Biofuels Coalition members. See 

supra § I.C.1-3. There is injury in fact. 

The Refineries dispute the second Article 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 there is no evidence showing any individual extension 

of the small refinery exemption harmed any individual Biofuels Coalition member. 

For example, Cheyenne and Woods Cross insist that their exempted RINs constitute 

only a tiny fraction of the total RFS obligation. 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 causation for) ethanol demand and 

carryover RINs. 

These arguments are colorable, but we conclude that the “fairly traceable” 

requirement is satisfied. In Massachusetts, a coalition of States, local governments, 

and private organizations alleged that the EPA abdicated its responsibility to regulate 

certain greenhouse emissions from new motor vehicles under the Clean Air Act. 549 

U.S. at 504. Although “[t]he harms associated with climate change” 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 vehicles 
48 

contributed “insignificantly to petitioners’ injuries,” and 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 Court did not accept this line of 

reasoning: 

The EPA overstates its case. Its argument rests on the erroneous 

assumption that a small incremental step, because it is incremental, can 

never be attacked in a federal judicial forum. Yet accepting that 

premise would doom most challenges to regulatory action. Agencies, 

like legislatures, do not generally resolve 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 understanding of how best to proceed. 

Id. at 524 (citation omitted). Massachusetts thus held “[w]hile it may be true that 

regulating motor-vehicle emissions 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, 902 (10th Cir. 2012) (“[T]he Supreme 

Court concluded that Massachusetts had standing to challenge the EPA’s refusal to 

regulate greenhouse-gas emissions despite the attenuated causal chain linking agency 

non-action to potential environmental damage.”). 

The causal chain linking the EPA’s grants 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 impossible to precisely 
49 

quantify. But the evidence presented is sufficient to show for standing purposes that 

Biofuels Coalition members who produce ethanol or feedstocks suffered some injury 

– even if each individual member’s loss is small – which is fairly traceable to 

increasing the number of unretired RINs. Paired with economic principles 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 Coalition members is “th[e] result [of] 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 analysis 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 causation in this context). It is “well 

settled” for these purposes that “petitioners need not prove a cause-and-effect 

relationship with absolute certainty; substantial likelihood 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]roximate causation is not a 

requirement of Article III standing”). “This is true even in cases where the injury 
50 

hinges on the reactions of third parties” to an agency’s conduct. Nat. Res. Def. 

Council, 894 F.3d at 104. 

Additionally, more than just general competitive harm is fairly traceable to the 

extensions of the three small refinery exemptions at issue. Those extensions not only 

remove a large compliance burden from the Refineries, but also specifically relate to 

products (ethanol and ethanol feedstocks) that Biofuels Coalition members sold and 

continue to sell. Several courts have found causation for 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, that it was “self-evident” the complainants 

established “injury, causation, 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 causation and redressability requirements of 

Article III are easily satisfied”). 

The Refineries challenge redressability as well, the third 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 benefit the Biofuels Coalition now. Wynnewood 

joins in by arguing that it was unnecessary to “reinstate” any 2017 RINs at all for that 

refinery. The Refineries also contend that there is no statutory basis for the EPA to 

force them to retire different RINs in excess of RFS obligations for future years, and 

even if there were, it would be speculative to conclude this small set of RINs would 
51 

meaningfully affect ethanol prices or otherwise change the financial fortunes of 

individual Biofuels Coalition members. 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 have 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 complete redressability, stressing that a 

plaintiff need show only that a favorable decision would redress ‘an injury,’ not 

‘every injury.’” 678 F.3d at 902 (emphasis 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 

extent if petitioners received the 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 redress 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 favorable decision would relieve “some 

extent” of an injury. Indeed, if the law required that the requested relief 

afford complete redress, the Supreme Court would not have allowed 

Massachusetts to proceed against the EPA, as there was no guarantee a 

favorable decision would mitigate against future environmental damage, 

must less redress it completely. 

Id. at 905 (citation omitted, brackets added). We recognized 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 Chambers will likely be ‘reduced to some 
52 

extent’ by an injunction running against the Attorney General.” Id. at 757–58 

(citations omitted); see also id. at 757 n.16 (“An opposite 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 economic harm because all of the reinstated or exempted 

RINs were for 2017 or earlier compliance years. 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 may have ongoing effects as a result of the carryover 

process. A RIN generated in year one but used in year two reduces the amount of 

blending that must be done or the number of RIN purchases that must 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 year three. The EPA appears 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 may be granted in the 

future, the 2016 and 2017 exemptions have directly increased the number of 

carryover RINs that will likely be available for compliance with the 2019 standards.” 

Renewable Fuel Standard Program: Standards for 2019 and Biomass-Based Diesel 

Volume for 2020, 83 Fed. Reg. 32,024, 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 vacating or invalidating the extensions of the 
53 

Refineries’ exemptions is “likely” to lead to EPA action addressing the contested 

2016–2017 RINs, thus at least partially redressing the Biofuels Coalition’s alleged 

harms. In addition to authorizing 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 violations of the statute 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 other things, those regulations 

prohibit creating or transferring “a RIN that is invalid,” 40 C.F.R. § 80.1460(b)(2), 

failing to acquire sufficient RINs or using invalid RINs “to meet the person’s RVOs,” 

id. § 80.1460(c)(1), and causing another person to commit these and other violations. 

Id. § 80.1460(d). 

On more than one occasion, the EPA has requested legal action seeking afterthe-fact retirements of RINs. Two examples are highlighted on the EPA’s website. 

See Civil Enforcement of the Renewable Fuel Standard Program,

https://www.epa.gov/enforcement/civil-enforcement-renewable-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 complaint 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. The 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 million 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 retiring 65 million RINs in 2016–2017. Id.

Docket No. 7 at 4, 10. The purpose of these illustrations is not to comment on the 

legal merits of the cases, but instead to demonstrate the likelihood of the EPA taking 

further action to offset the effects of any 2016–2017 refinery RINs that are vacated or 

deemed invalid by court order. 

Post-Sinclair events reinforce this conclusion. After holding that an 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 remand and vacatur with respect to a third. 

Producers of Renewables United for Integrity 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 ordered a form of prospective relief: 

The three Wyoming refineries had by then demonstrated compliance 

with the 2014 and 2015 standards by retiring RINs for those years, and 

those RINs had since expired. The EPA thus decided that, in order to 

provide the refineries with “meaningful relief” from their since-excused 

compliance, it would “replac[e]” the retired, expired RINs with an equal 

number of newly minted 2018 RINs. 

Id. at 3 (quotation marks and brackets in original). A petitioner challenged the EPA’s 

RIN-replacement orders, and the D.C. Circuit transferred the case to this court. Id. at 
55 

3–4. Again, we raise this matter not to pre-judge the merits of Producers of 

Renewables, as those merits will be evaluated by a different panel of this court. We 

highlight the case solely to show a likelihood that the EPA will not sit on its hands if 

prior refinery RINs are invalidated. 

The competitor standing doctrine likewise informs redressability. The EPA’s 

decisions to lift renewable fuel requirements by extending the small refinery 

exemption convey an advantage to the Refineries linked to the principal economic 

activity of certain Biofuels Coalition members (generating, marketing, and selling 

ethanol). Courts invoking competitor standing observe that redressability 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 & Ethics in Washington, 939 F.3d at 147; see also United States v. 

Students Challenging Regulatory 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 trifle is enough for 

standing to fight out a question of principle”) (citation omitted). 

Because standing defines and limits the power of the judicial branch, it does 

not exist for the convenience of the parties. Standing must be based on specific facts 

satisfying all required legal elements, just as our determination 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 it 
56 

involves decisions to grant three small refinery extension petitions, as opposed to just 

one. There is evidence in the record that these three Refineries collectively account 

for a non-trivial amount of exempted renewable fuel. This case also involves 

multiple third-party producers, acting through the trade associations or advocacy 

groups that constitute the Biofuels Coalition. There is evidence that these producers 

collectively account for a non-trivial amount of ethanol and ethanol feedstocks. If 

these complainants lack a “fairly traceable” and “redressable” injury vis-à-vis these 

Refineries, it is hard to imagine 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 granting extensions of the small refinery 

exemption may be effectively unreviewable. 

This threat is heightened by the manner in which extension petitions are 

granted. Small refineries understandably 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 designations). Given these confidentiality 

concerns, the EPA normally does not publish decisions granting small refinery 

petitions, in the Federal Register or anywhere else. See Sinclair, 887 F.3d at 992 

(“Nor do third parties have access to the decisions, since the EPA does not publicly 

release its decisions because they contain confidential business information.”). This 

makes it difficult for outsiders to determine when petitions have been filed and 

granted. Members of the Biofuels Coalition claim that they only found out about the 
57 

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 without participation by third parties, it is 

difficult to see how EPA decisions granting small refinery petitions will ever be 

subject to appellate review. A small refinery that receives an extension of its 

renewable fuels exemption has no incentive to appeal. Nor does the EPA have any 

incentive to appeal its own decision. 

Excepting these EPA small refinery decisions from judicial review aimed at 

ensuring statutory compliance would be troublesome. “Congress rarely intends to 

prevent courts from enforcing its directives to federal agencies.” Mach Mining, LLC 

v. EEOC, 135 S. Ct. 1645, 1651 (2015). The Administrative Procedure Act (“APA”) 

“creates a basic presumption of judicial review [for] 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 “strong,” 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” these types of adjudications 

under APA provisions such as 5 U.S.C. § 706(2). Weyerhaeuser, 139 S. Ct. at 370, 

371. Accepting the Refineries’ standing arguments would largely negate this 
58 

presumption and preclude any judicial review of orders granting extensions of the 

small refinery exemption. 

III. OTHER JURISDICTIONAL ISSUES

The Refineries present several other challenges to jurisdiction. In addition to 

contesting jurisdiction based on the 2014 change in the EPA’s definition of “small 

refinery,” see infra § IV.A.2, the Refineries separately 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 Biofuels Coalition, notwithstanding its status as a non-party 

to agency proceedings on the Refineries’ hardship applications, 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 jurisdictional arguments. 

A. TIMELINESS

The Clean Air Act generally requires challenges to final agency actions to be 

filed “within sixty days from the date notice of such promulgation, approval, or 

action appears in the Federal Register[.]” 42 U.S.C. § 7607(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 immunity through § 7607(b)(1),” the 60-day 

deadline “serves a jurisdictional function” by restricting this congressional waiver. 

Id. at 1260. The relevant EPA regulation states that “[u]nless the Administrator 

otherwise explicitly provides in a particular promulgation, approval, or action, the 
59 

time and date of such promulgation, approval 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, two 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 provisions was “to bring greater fairness to so-called ‘races to 

the courthouse.’” 50 Fed. Reg. 7,268 (Feb. 21, 1985). Litigants looked for what they 

perceived as friendly courts regarding the interpretation of certain statutes. They 

then sought “by various means to be the first 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,” eliminated “a great many racing opportunities,” but not all of 

them, and other statutes contained no provisions to reduce racing. Id. In 

promulgating the new rules, the agency sought to “eliminate the worst abuses 

associated with races to the courthouse under those EPA-administered statutes that 

allow racing and under which races are reasonably likely to occur.” Id.

One commenter objected to the new rules on the ground that “affected persons 

may have no notice of the action” and be deprived of due process. Id. at 7,269. The 

EPA addressed that concern by noting that “[m]ost potential litigants interested in 

actions covered by the regulations will have actual notice of non-Federal Register 
60 

documents.” Id. As to litigants with notice, the EPA observed that the rule “will 

have the beneficial effect of establishing a fixed trigger for commencing 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 commenter’s concern – 

that someone entitled to seek judicial 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 rulemaking. 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 publication, and agency actions reflected in other 

documents become final two weeks after publication. The rule is silent as to whether 

this principle of finality applies to agency actions effected 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 “raised 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 possible purpose would be served by such an 

interpretation, other than to immunize unpublished agency actions from third party 

scrutiny? The agency’s justification for promulgating the rule in the first instance – 

setting a fixed trigger for commencing the judicial review process – does not apply to 
61 

parties without notice who cannot participate in any race to the courthouse. As a 

result, the Refineries’ proposed interpretation of § 23.3 is not just inconsistent with 

the strong presumption favoring judicial review of agency action. See supra § II. It 

is also in tension with the enduring principle that if a literal interpretation would 

“lead to absurd results, or be contrary to the evident meaning of the act taken as a 

whole, it should be rejected.” Heydenfeldt v. Daney Gold & 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’ hardship petitions were not published in the 

Federal Register, the statutory clock never started.3

 The EPA regulation 

implementing the statute states that documents other than those published in the 

Federal Register become final two weeks after they are signed, but the text and the 

preamble demonstrate that the regulation does not address parties without notice of 

such “other documents.” The Refineries’ attempt to invoke the statutory cut-off is 

misguided. 

B. RIPENESS

 3

 The statute also permits a party seeking review “based solely on grounds 

arising after such sixtieth day” to submit a petition “within sixty days after such 

grounds arise.” 42 U.S.C. § 7607(b)(1). Here, however, there is no way to hold that 

the Biofuels Coalition’s petition is based exclusively on grounds arising 60 days after 

any publication in the Federal Register (thus triggering the “after-arising” 60-day 

filing period), because no publication ever took place. 
62 

The Refineries’ other argument is couched in terms of ripeness. Although 

federal courts have a “virtually 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 courts, through avoidance of premature 

adjudication, from entangling themselves in abstract disagreements over 

administrative policies, and also to protect 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) (citation omitted). “Determining whether administrative 

action is ripe for judicial review requires us to evaluate (1) the fitness of the issues 

for judicial decision and (2) the hardship to the parties of withholding court 

consideration.” Id. at 808. 

The “fitness for judicial decision” criterion favors review. Relevant 

considerations include whether “the issue is a purely legal one,” whether “the agency 

decision in dispute was final,” whether the court would “benefit from further factual 

development of the issues presented,” and whether “judicial intervention would 

inappropriately interfere with further administrative action[.]” Wyoming v. Zinke, 

871 F.3d 1133, 1141–42 & n.2 (10th Cir. 2017) (citations and internal quotation 

marks omitted). No one disputes that the refinery orders constitute final agency 

actions. The core statutory interpretation issues are predominantly 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 crystallized 
63 

in three written orders granting the refinery petitions. There is no indication that the 

EPA intends to reconsider those orders, so judicial review will not interfere with any 

ongoing or contemplated administrative activity. 

The “hardship to the parties” criterion favors review as well. We have 

afforded substantial weight to the hardship element when complainants face 

“significant costs, financial or otherwise,” if their disputes are deemed unripe for 

adjudication, and when the respondent has “taken some concrete action” that impairs 

or threatens to impair the petitioner’s interests. Utah v. U.S. Dep’t of Interior, 535 

F.3d 1184, 1197–98 (10th Cir. 2008). All of those factors are present here. The EPA 

has taken concrete action by granting the Refineries’ extension petitions. Exempting 

the Refineries from RFS compliance impairs the interests of Biofuels Coalition 

members by increasing competition and reducing the value of products those 

members market and sell. The alleged harm suffered by Biofuels Coalition 

constituents will worsen if judicial review is delayed or denied. 

The Refineries cite authorities discussing the benefits of allowing an 

administrative agency to consider the precise question raised, adding that a litigant 

waives any argument not so presented. The cases indicate that parties “generally 

must structure their participation so that it alerts the agency 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 internal quotation marks omitted). The cases also explain 

that the waiver rule ensures “simple fairness” to the agency and other affected 
64 

litigants, while providing a court “with a record 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 received 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 court is powerless to require administrative 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 explanation 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 theory could be more tailored to each argument giving rise to 

this appeal, they in practice provide adequate facts and a sufficient explanation of the 

EPA’s reasoning to permit judicial review. 

IV. THE BIOFUELS COALITION’S STATUTORY CONSTRUCTION CHALLENGES

The Biofuels Coalition contends that the EPA exceeded its statutory authority 

in at least three respects by granting the Refineries’ petitions. First, the Biofuels 

Coalition asserts that the EPA failed to honor the statutory requirement of an 
65 

“extension,” confusing an extension of an exemption with a plain-vanilla exemption. 

Second, the Biofuels Coalition argues that the EPA robbed the phrase 

“disproportionate economic hardship” of its intended meaning by focusing on 

structural factors and eschewing a comparative analysis to determine which hardships 

are disproportionate. Third, the Biofuels Coalition says the EPA neglected to require 

that any disproportionate economic hardship was caused by compliance with RFS 

obligations. 

These arguments rise or fall 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 Administrator a study to determine 

whether compliance with the requirements 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 Administrator shall extend the exemption 
66 

under clause (i) for the small refinery for a period of not less 

than 2 additional years. 

(B) Petitions based on disproportionate 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 disproportionate 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 subparagraph (A)(ii) and other 

economic factors. 

(iii) Deadline for actions on petitions 

The Administrator shall act on any petition submitted 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 statutory language must be enforced “according to its 

terms,” because we assume “the ordinary meaning of that language accurately 

expresses the legislative purpose.” Hardt v. Reliance Standard Life Ins. Co., 560 

U.S. 242, 251 (2010) (citation and internal quotation marks omitted). To decide 

whether the language of a statute 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 internal quotation marks omitted). A statute 

generally should be interpreted “so that effect is given to all its provisions, so that no 

part will be inoperative or superfluous, void or insignificant.” Rubin v. Islamic 
67 

Republic of Iran, 138 S. Ct. 816, 824 (2018) (citation 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) (indicating that a court’s duty 

is “to construe statutes, not isolated provisions”) (citation and internal quotation 

marks omitted). 

A. EXTENSION OF EXEMPTION

The APA states that a reviewing court 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 right[.]” 5 U.S.C. § 

706(2)(C). The APA further states that “[t]o the extent necessary to decision and 

when presented, the reviewing court shall decide all relevant questions of law, 

interpret constitutional and statutory provisions, and determine the meaning or 

applicability of the terms of an agency action.” Id. § 706. When reviewing an 

agency’s legal determination, the court generally applies the standard 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 “whether Congress has directly 

spoken to the precise question at issue,” and if not, “whether the agency’s answer is 

based on a permissible construction 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 interpretive rules and informal adjudications 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 administrative action with the effect of law 

when it provides for a relatively formal administrative procedure tending to foster the 

fairness and deliberation that should underlie a pronouncement 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 adjudications 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 adjudications 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 agency’s] consideration, the validity of its 

reasoning, its consistency with earlier and later pronouncements, and all those factors 

which give it power to persuade, if lacking power to control.” 323 U.S. at 140 

(brackets added). Put another way, an administrative ruling under Skidmore may 
69 

“claim the merit of its writer’s thoroughness, logic, and expertness, its fit with prior 

interpretations, and any other sources of weight.” Mead, 533 U.S. at 235. 

1. TEXTUAL ANALYSIS

For the Biofuels Coalition’s first statutory argument, we begin with the text 

referring to an “Extension of Exemption.” The small refinery exemption subject to 

an extension in this section of the amended Clean Air Act is expressly identified as 

“Temporary” in subpart (A). 42 U.S.C. § 7545(o)(9)(A). That temporary exemption 

for small refineries initially lasted until calendar year 2011. Id. § 7545(o)(9)(A)(i). 

Congress decided this temporary exemption could be extended past 2010 for a given 

small refinery if compliance, as determined by a DOE study, would impose 

disproportionate economic hardship. Id. § 7545(o)(9)(A)(ii). In subpart (B), 

Congress decided that this temporary exemption could also be extended past 2010 for 

a small refinery if compliance, as adjudicated by the EPA in response to that 

refinery’s petition, would impose disproportionate economic hardship. Id. § 

7545(o)(9)(B)(i)–(ii). 

A common definition of “extension” that meshes with this statutory scheme is 

apparent. Several dictionaries include a definition of “extension” 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 visited January 17, 2020); see also 

Extension, Collins Online Dictionary, 

https://www.collinsdictionary.com/dictionary/english (“Collins,” last visited January 
70 

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/browse (“Dictionary.com,” last visited 

January 17, 2020) (“[A]n additional period of time given one to meet an 

obligation[.]”). Similar dictionaries contain a related definition of “extension”: 

“[T]he fact of reaching, stretching, or continuing; the act of adding to something in 

order to make it bigger or longer.” Extension, Cambridge Online Dictionary, 

https://dictionary.cambridge.org/us/dictionary/english (“Cambridge,” last visited 

January 17, 2020); see also Extension, Dictionary.com (“[T]hat by which something 

is extended or enlarged; an addition[.]”); Extension, Lexico Online Dictionary, 

https://www.lexico.com/en/definition (“Lexico,” last visited January 17, 2020) (“A 

part that is added to something to enlarge or prolong it.”). These dictionaries also 

indicate that the definition of “extend” includes “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: Prolong[.]”) (capitalization omitted). 

These ordinary definitions of “extension,” along with common sense, dictate 

that the subject of an extension must be in existence before it can be extended. For 

example, if someone interested in current events subscribes to a news service in years 

one through five, allows the subscription to lapse in years six and seven, and goes 

back to the news service in year eight, we usually do not say that year eight was an 

“extension” of the subscription from years one through five. Rather, we say that the 

person renewed or restarted his or her subscription in year eight. Likewise, if 
71 

someone seeks and obtains permission in years one through five to shop at a 

members-only retailer, does not seek or is denied membership in years six and seven, 

but seeks and obtains membership in year eight, we typically do not say that the 

return to the retailer in year eight was an “extension” of the membership. We say, 

instead, that the person renewed or restarted his or her membership in year eight. 

Paired with the rest of the amended 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 ineligible for an extension, because at that point there is 

nothing to prolong, enlarge, or add to. Congress chose to provide an “Extension of 

exemption” for disproportionate economic hardship, 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 identified in the DOE study or with a 

meritorious petition. See Advocate Health Care Network v. Stapleton, 137 S. Ct. 

1652, 1659 (2017) (observing that “[w]hen legislators did not adopt ‘obvious 

alternative’ language, ‘the natural implication is that they did not intend’ the 

alternative”) (citation omitted). Congress presumably used the term “extension” for a 

reason, and we should be hesitant to strip that word of significant meaning. See 

TRW, Inc. v. Andrews, 534 U.S. 19, 31 (2001) (restating that “[i]t is a cardinal 

principle of statutory construction 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 insignificant”) (citation and internal quotation marks omitted). 
72 

This interpretation of “extension” funnels small refineries toward compliance 

over time. The statute contemplates a “temporary” exemption for these entities “with 

an eye toward eventual compliance with the renewable fuels program for all 

refineries.” Hermes Consolidated, LLC v. EPA, 787 F.3d 568, 578 (D.C. Cir. 2015). 

All small refineries were the beneficiaries 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 only 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 significant weight on more recent 

Congressional pronouncements emphasizing the significance or breadth of the small 

refinery exemption. See supra § I.B. The Supreme Court has discouraged the use of 

“[p]ost-enactment legislative history (a contradiction 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-enactment) legislative history is 

persuasive to some because it is thought to shed light on what legislators understood 

an ambiguous statutory text to mean when they voted to enact it into law. But postenactment legislative history by definition could have had no effect on the 
73 

congressional vote.” Id. (citations and internal quotation marks omitted). Bruesewitz

assigned no value to “a Committee 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 force one attaches to legislative history, the Court normally 

gives little weight to statements, 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 written by the primary sponsors of a bill “13 

years after the amendments were enacted,” as the letter had “scant or no” interpretive 

value). 

We need not decide whether the post-enactment history proffered by the EPA 

and the Refineries is off limits, because even if we consider those materials, they do 

not change the outcome. The post-enactment materials do not discuss 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 reflected in the Energy Policy Act and the 

Energy Independence and Security Act were 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 program was intended to “move the United 

States toward greater energy independence and security” and “increase the 

production of clean renewable fuels”) (citation omitted). Those targets were 

designed to be aggressive and “market forcing.” See supra §§ I.A–B; see also 
74 

Americans for Clean Energy v EPA, 864 F.3d 691, 710 (D.C. Cir. 2017) (“[T]he 

Renewable Fuel Program’s increasing requirements are designed to force the market 

to create ways to produce and use greater and greater volumes of renewable fuel each 

year.”). To balance all of those policy concerns, Congress gave small refineries a 

substantial amount of time to adapt, commencing the RFS program with a blanket 

exemption that for some refineries ended up lasting seven years. 

A small refinery in 2006 was in a much different position than a small refinery 

in 2016 or 2017. A small refinery in 2006 did not have a meaningful 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 enter into or remain 

in the market in light of the statute’s challenging renewable fuels mandate. The EPA 

has long required each small refinery submitting an extension petition to consider and 

explain when the refinery will achieve compliance. 40 C.F.R. § 80.1441(e)(2)(i). So 

a small refinery in 2016 or 2017 had an ample opportunity to study and understand 

any disproportionate economic impact likely to be occasioned by meeting 

Congressional targets. Construing the word “extension” to require prior exemptions 

– as a predicate to prolongment or enlargement – 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 quarter of 2016, the EPA itself limited “extensions” to only 

those small refineries that qualified for the original blanket exemption. To illustrate, 
75 

in April 2016, the EPA denied a petition submitted by Dakota Prairie Refining, LLC 

(“Dakota Prairie”) to extend the small refinery 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 language of the CAA and in furtherance of 

Congressional intent, EPA promulgated regulations that allow only small refineries 

that previously had received the initial exemption to qualify for an extension of that 

exemption.” Id. Hence, “EPA interprets and implements these provisions as 

allowing those small refineries qualifying for the statutory temporary exemption as 

now eligible for an extension 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 approach is not only consistent 

with the plain language of the statute and regulations, but also reflects 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 consequences associated with any refinery 

exemption – an increase in obligations for non-exempt facilities or the use of less 

renewable fuel than EPA anticipated 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 available on PACER, and 

those materials are cited in footnote 4 on page 23 of the EPA’s appellate brief in this 

case. 
76 

standards.” Id. at 9 of 17. The EPA then put these 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 exemption 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 petition “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 submit a 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 calendar year 2009 – more than a decade after 

the fact. The EPA would also be empowered to grant a re-submitted extension 

petition for an earlier year even though the agency had previously denied that very 

petition. And aside from these hypothetical examples, EPA data show that the 

approach followed by the agency from 2016-forward has opened up a gaping and 

ever-widening hole in the statute. The number of petitions filed by small refineries 

has gone up substantially, and the EPA has granted nearly every hardship application. 

See supra § I.B. 

In any event, a more delimited interpretation in which an “extension” requires 

a predicate exemption works hand-in-hand with the phrase “at any time.” As noted, 

the EPA must issue annual RFS percentages by November 30 of the prior year. 42 
77 

U.S.C. § 7545(o)(3)(A)–(B). Because they can submit petitions “at any time,” small 

refineries seeking to extend their hardship exemptions are not limited by this 

November 30 deadline. This is a significant statutory concession. 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 the EPA cannot ensure that non-exempt obligated 

parties compensate for the renewable-fuel shortfall created by belated 

exemptions, those gallons of renewable fuel simply go unproduced. 

American Fuel, 937 F.3d at 571 (emphasis in original). The EPA raises the 

percentage standards for non-exempt parties in a given year by subtracting from its 

calculations the transportation fuel contributions of small refineries that were granted 

exemptions before the EPA established the percentage standards in question. Id. at 

588 (citing 40 C.F.R. § 80.1405(c)). “This solution, however, is only partial: the 

EPA does not currently account for small refinery exemptions granted after it 

promulgates percentage standards for that year – so-called retroactive exemptions.” 

Id. (emphasis in original). 

In short, it confers a substantial benefit upon small refineries and it maintains a 

coherent regulatory scheme to interpret “at any time” to exempt hardship petitioners 

from the EPA’s annual percentages deadline. The EPA does not have a mechanism 

to fully compensate for volumes exempted as a result of later-filed or later-granted 

small refinery petitions, and the tool the EPA does have imposes concomitant 
78 

burdens on non-exempt obligated parties. See id. at 571 (“When calculating 

percentage standards for any given year, the EPA accounts for any small refineries 

that have received exemptions by requiring non-exempt obligated parties to produce 

proportionally more.”). Interpreting the phrase “at any time” in this manner allows 

the word “extension” to maintain its ordinary meaning and to meaningfully promote 

the aims of the statute. The contrary interpretation suggested in this lawsuit by the 

EPA and the Refineries does not. 

Although our charge is to evaluate only 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 case was the meaning of the statutory waiver 

provision based on “inadequate domestic supply.” 42 U.S.C. § 7545(o)(7)(A). The 

EPA attempted to defend a reading of that provision 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 interpretation permitted the agency to unduly 

“bring the volume requirements down,” and “[n]o argument” supported “that goaldefying (much less that text-defying) statutory construction.” Id. (citation omitted); 

see also id. at 712 (commenting that the EPA’s interpretation turned “the Renewable 

Fuel Program’s ‘market forcing’ provisions on their head”). The D.C. Circuit 

observed that even if it were persuaded by the agency’s policy arguments for 

lowering renewable fuel volume requirements, “those arguments could not overcome 

the statute’s plain language, which is our primary guide to Congress’ preferred 

policy. If the regime is indeed flawed, it is up to Congress and the President to 
79 

‘reenter the field’ and fix it.” Id. (citations and first 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 record that Woods Cross ever qualified for 

a hardship exemption, much less in the years preceding the refinery’s most recent 

application to suspend compliance. See id. § I.C.2. Although Cheyenne presumably 

received an exemption in 2015, its original exemption expired 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 Act did not authorize the EPA to grant the 

petitions. 

2. THE 2014 SMALL REFINERY RULE

The EPA and the Refineries contend that we lack jurisdiction to address the 

foregoing issue as a result of the 2014 amendment to the regulatory definition of 

“small refinery.” The Clean Air Act generally provides that although challenges to 

final agency actions which are “locally or regionally applicable” must be filed “in the 

United States Court of Appeals for the appropriate circuit,” challenges to final 

agency actions identified by the EPA as “based on a determination of nationwide 

scope or effect” must be filed “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 must be filed within 60 days from the date 
80 

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 the 2014 Small Refinery Rule, and the 60-day window for 

any such challenge (which could only be heard 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 and Fuel Additives: RFS Pathways II, and 

Technical Amendment to the RFS Standards and E15 Misfueling Mitigation 

Requirements.” 79 Fed. Reg. 42,128 (July 18, 2014). The EPA explained that in 

2010, the agency specified in the definition of “small refinery” that the 75,000 barrels 

per day (“bpd”) threshold determination “should be calculated based on information 

from calendar year 2006.” Id. at 42,152. By 2014, however, the agency believed it 

was inappropriate that “refineries satisfying 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 bpd 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 specifying 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 calendar 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 modifying 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 supporting 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 unfairly disqualify a refinery from eligibility for small 

refinery relief based only on a single year’s production since 2006.” Id. at 42,152. 

The EPA thought it would be improper to treat differently “two refineries whose 

recent operating conditions were equivalent” if “one refinery exceeded 75,000 bpd in 

a single year as much as 8 years ago.” Id. The agency therefore modified the final 

rule “to require that throughput be no greater than 75,000 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 with similar performance the 

same,” and argued that the new changes “reasonably implement the statutory 

definition of ‘small refinery,’ which indicates 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 “small refinery” and 

the definition of an “extension,” the two issues are not the same. Qualifying as a 

“small refinery” is a necessary but not sufficient condition for an extension. In 

addition to meeting the definition of a “small refinery,” a petitioner must demonstrate 

that it will suffer disproportionate 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 also must show that it is seeking an “extension” of an 
82 

exemption, as opposed to a free-standing “exemption.” Id. The 2014 Small Refinery 

Rule establishes who may seek an extension of an exemption, 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 that to qualify for an extension of the 

exemption, a “small refinery” must have average daily crude oil throughput of 75,000 

barrels or less in the prior year (in contrast to the previous version 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 from 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 the word “extension” actually 

means. The preamble and the administrative rule also contain no indication that 

statute’s use of the word “extension” is ambiguous; the ambiguity the EPA attempted 

to address expressly pertained to the phrase “small refinery.” See 79 Fed. Reg. at 

42,152 (noting that the statute 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 exemption. 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 EPA did not mention its regulatory 

definition of “small refinery” when denying the Dakota Prairie petition. Dakota 

Prairie Appellate Petition at 8–9 of 17. If the 2014 Small Refinery Rule controlled 
83 

the meaning of “extension,” the EPA would have been required to adjudicate Dakota 

Prairie’s petition based on whether the refinery 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 sought 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 petitions for review filed in 2017 and 2018 

raise no back-door challenge to the 2010 regulation: 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 neither misdirected 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 that the 2014 Small Refinery Rule is up for grabs in this 

litigation, but also that the Rule sets forth a permissible construction of the term 

“extension.” Neither assumption is accurate. As discussed, the validity of the 2014 
84 

Small Refinery Rule is not being disputed here, only the validity of unpublished EPA 

orders granting small refinery petitions that were not subject to notice-and-comment 

procedures. Even if the 2014 Small Refinery Rule reasonably fills a gap in the 

portion of the statute defining a “small refinery” by throughput 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 ambiguity 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. DISPROPORTIONATE ECONOMIC HARDSHIP

The Biofuels Coalition’s second statutory argument takes aim at the EPA’s 

construction of “disproportionate 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 questions 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 “suffering,” “privation,” or “adversity.” We 

assume for the sake of argument that at least part of the hardship the EPA sought to 

address, see infra § IV.C, was each refinery’s RFS compliance bill for the year in 

question. REC2 at 593, 596, 652, 688–89, 694. 

A “hardship” for a small refinery, however, is not enough. The hardship must 

be “disproportionate.” The amended Clean Air Act “commands the EPA to consider 
85 

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 effect of the RFS Program compliance costs on a given 

refinery with the economic state of other refineries.” Id.; see also Hermes, 787 F.3d 

at 575 (reciting that “the relative costs of compliance alone cannot demonstrate 

economic hardship because all 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 dispense with a comparative analysis in 

granting the Refineries’ extension petitions. Several metrics in the scoring system 

created by the DOE in 2011 are designed to be comparative. See 2011 DOE Study, 

REC1 at 490 (“[M]etrics were developed to evaluate whether each of the eighteen 

refineries that responded to the survey and fall within the scope of the study would 

suffer an economic hardship relative to an industry standard.”). For example, the 

Disproportional Economic Impact Metric of “Relative refining margin measure” is 

calculated as a three year average for all small refineries, and “[r]efineries with a 

negative net average margin were scored a 10; those below the industry average were 

scored a 5.” Id. at 527 (emphasis omitted). The Disproportional Economic Impact 

Metric of “In a niche market” also recognizes “higher than industry refining margins 

for the niche refiner.” Id. at 527 (emphasis omitted). The Disproportional Structural 

Impact Metric of “Renewable fuel blending (% of production)” further provides that 

refineries which “have greater than the industry average of approximately 32 percent 
86 

diesel production receive a score of 5; those at 40 percent diesel or above have a 

score of 10.” Id. at 526 (emphasis omitted). 

The EPA orders at issue are not as clear as they might 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 EPA 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 the 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 EPA eliminated the requirement of consulting 

industry benchmarks when evaluating the Refineries’ assertions of disproportionate 

economic hardship. 

 
87 

C. HARDSHIP FROM COMPLIANCE

The Biofuels Coalition’s third statutory argument is that the EPA relied on 

disproportionate economic hardship suffered by the Refineries as a result of 

something other than RFS compliance. Part (A) of 42 U.S.C. § 7545(o)(9), in 

connection with the “[e]xtension of the exemption” that can be effected by a DOE 

study, directed the DOE to investigate “whether compliance with the requirements” 

of the RFS program “would impose a disproportionate economic hardship on small 

refineries.” Id. § 7545(o)(9)(A)(ii)(I). The next clause 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 exemption 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-case 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 phrase ‘by reason of’ denotes some form of causation,” 

Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833, 1842 (2018), leading the EPA 

and the Refineries to argue that small refinery petitions need only be “for the reason 

of” economic hardship, not “for the 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 that 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 must induce 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-caused-by-compliance requirement in Part (A) 

works together with it. 

The agency orders granting the Refineries’ extension petitions are not 

restricted to disproportionate economic hardship caused by RFS compliance. The 

EPA stated in the Woods Cross and Wynnewood 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. REC2 at 682, 738–39. The EPA echoed in the 

Cheyenne order that disproportionate economic hardship may be the result of “a 

difficult year for the industry as a whole.” Id. at 645. Macroeconomic conditions 

surely provide important context for assessing individual small refinery extension 

petitions. But hardships caused by overall economic conditions are different from 

hardships caused by compliance with statutory renewable fuel obligations. 
89 

Even if the EPA’s references to structural conditions and the industry as a 

whole could be characterized as inartful shorthand, the agency concluded that 

removing RFS obligations for Woods Cross in 2016 and Wynnewood in 2017 would 

relieve those Refineries’ disproportionate economic hardship “in whole or in part[.]” 

Id. at 684, 741. This statement is indecipherable unless the EPA had in mind 

hardships beyond those caused by RFS compliance. The alleged hardships imposed 

on Woods Cross and Wynnewood were in the form of RFS compliance expenses. Id. 

at 652, 688–89. Each of those hardships was entirely eliminated once the EPA 

suspended the Refineries’ RFS obligations. The only way 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 part on hardships not 

caused by RFS compliance was outside the scope of the EPA’s statutory authority. 

V. THE BIOFUELS COALITION’S ADDITIONAL CHALLENGES

Beyond statutory construction issues, the Biofuels Coalition contends that the 

EPA’s analysis of disproportionate economic hardship was arbitrary and capricious 

under the APA. See 5 U.S.C. § 706(2)(A). The Biofuels 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 industry average, and Wynnewood 

characterized $80.4 million in scheduled turnaround costs as direct operating 

expenses; (2) overall RIN purchase costs were relatively modest, especially in 
90 

comparison to the applicable state and local sales tax rate for each refinery; (3) the 

corporate parents of the Refineries had carryover RINs which could be used to offset 

the Refineries’ yearly RFS obligations, and regardless, the financial health of the 

parents should have been factored in to each hardship determination; and (4) prior 

agency studies and other documents showed the Refineries could recoup RFS 

compliance costs via higher consumer prices. 

Our review is “narrow” and “deferential” 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 “examine the relevant data and articulate a satisfactory 

explanation for its action including a rational 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 quotation marks omitted). A 

decision is arbitrary and capricious if an agency “has relied on factors which 

Congress has not intended it to consider, entirely failed to consider an important 

aspect of the problem, offered an explanation for its decision that runs counter to the 

evidence before the agency, or is so implausible that it could not be ascribed to a 

difference in view or the product of agency expertise.” Id.; see also Dine Citizens 

Against Ruining Our Env’t v. Bernhardt, 923 F.3d 831, 839 (10th Cir. 2019) (adding 

that an agency acts arbitrarily and capriciously if it makes “a clear error of 

judgment,” but recognizing that a “presumption of validity attaches to the agency 

action” and the burden of proof lies with those challenging such action). 
91 

This forgiving standard of review dooms almost all of the Biofuels Coalition’s 

objections. Right or wrong, the EPA’s overall assessment of the Refineries’ 

economic status was not arbitrary. There 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 the 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 materials 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 the Biofuels Coalition, however, that 

warrants intervention: The EPA ignored or failed to provide reasons for deviating 

from prior studies showing that RIN purchase costs do not disproportionately harm 

refineries which are not vertically integrated. This oversight is significant even with 

deferential review, in part because administrative agencies “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 changing position” and “show that there are good 
92 

reasons for the new policy.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 

(2009) (emphasis omitted). Likewise, if the new policy “rests upon factual findings 

that contradict those” upon which the prior policy was based, the agency must 

provide a reasoned explanation “for disregarding facts and circumstances that 

underlay or were engendered 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 agency 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 study addressing this topic in 2015. See Dallas 

Burkholder, EPA Office of Transportation and Air Quality, A Preliminary 

Assessment of RIN Market Dynamics, RIN Prices, and Their Effects (May 14, 2015) 

(“Burkholder Study”), REC1 at 410–40. The EPA concluded that “[m]erchant 

refiners, who largely purchase separated RINs to meet their RFS obligations,” are 

“recovering these costs in the sale 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 meeting their RIN obligations in the price of 

their petroleum blendstocks.” Id. at 437–38, 440. 
93 

The agency revisited this topic in 2017. In response to multiple petitions 

seeking to change RFS “point of obligation” rules, the EPA cited the Burkholder 

Study and repeated that “merchant refiners are generally not uniquely adversely 

impacted (relative to integrated refiners).” Denial of Petitions for Rulemaking to 

Change the RFS Point of Obligation, EPA-420-R-17-008 (November 2017), at 22 & 

n.57, available at https://nepis.epa.gov (“EPA Point of Obligation Denial,” last 

visited January 17, 2020). The EPA similarly reiterated that while merchant refiners 

are “directly paying for the RINs they buy on the market, they are passing that cost 

along in the form of higher wholesale gasoline and diesel prices.” Id. at 23; see also 

id. (explaining that “[e]mpirical data” support 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 commenters purporting to show “an inability 

to ‘pass-through’ the cost of the RFS program to consumers,” but the agency did “not 

find these assessments convincing.” Id. at 23–24. In contrast, the EPA found 

“compelling” other papers demonstrating that “the ability of the merchant refiners to 

recover the cost of the RINs was complete (not statistically different than 100%) and 

occurred quickly (within 2 business days).” Id. at 25. 

At least through the first quarter of 2019, the EPA continued to affirm its 

policy position that merchant refiners pass through most or all of their RIN purchase 

costs. The agency reported in March of 2019 that it “conducted an extensive analysis 

of RIN prices and market dynamics. After studying the data, we concluded that RIN 

prices generally reflected market fundamentals and that obligated parties (including 
94 

parties that purchase separated RINs) recover the cost of RINs in the market price of 

gasoline and diesel fuel they sell.” Modifications to Fuel Regulations To Provide 

Flexibility for E15; Modifications to RFS RIN Market Regulations, 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 were to assume the cost 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 Standards, 83 Fed. Reg. at 63,742. 

The EPA did not analyze the possibility 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, including 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 recover the cost of the RINs they purchase by 

passing that cost along in the form of higher prices for the petroleum based fuels they 

produce.”) (citation and internal quotation marks omitted). Nor can there be serious 

debate that near-total RIN cost recovery within two business days would be material 

to any finding of “disproportionate 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-through analysis either. Id. at 684–85. 
95 

Especially glaring is the lack of any particularized pass-through analysis by 

the EPA for Wynnewood. Under the header of “RIN net revenue or cost,” 

Wynnewood acknowledged and attempted to distinguish the Burkholder Study in its 

hardship petition. Id. at 694. Despite Wynnewood’s explicit 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 the EPA could not have implicitly relied on the findings of 

that other agency. Id. at 740 & n.6. The EPA stated that it generally considered “all 

of the information submitted by a petitioner,” 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 analysis. 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 petitions. 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 able to recover the cost of RINs through prices 

they receive for the petroleum blendstocks they sell, we also 

acknowledge that there are many diverse factors that impact each 

individual refiner’s profitability 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 are 
96 

not limited to, the refinery’s location, their access to various types of 

crude oil, the local demand and competition 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 for 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 assigning too much weight to the Burkholder Study, or to the 

many other academic papers and studies indicating that merchant refineries typically 

recoup their RIN purchase costs through higher petroleum fuel prices. Nor is the 

problem necessarily that the EPA committed reversible errors in assessing the 

“diverse factors” potentially impacting an individual refiner’s ability to pass RIN 

costs on to customers. The difficulty is that the EPA did not address the applicability 

of the pass-through principle at all, even when one of the Refineries attempted to 

prove individual circumstances warranting the principle’s suspension. We do not 

know whether the pass-through studies previously performed or cited by the EPA 

matched up with each refinery’s individual conditions (thereby precluding a finding 
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of disproportionate economic hardship), because 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 silence ran counter to the record. 

VI. MOTIONS

In a pair of motions, the Biofuels Coalition requests judicial notice of certain 

documents. These documents include Forms 10-K for the Refineries’ parent 

organizations, the EPA’s Point of Obligation Denial, a brief submitted by the EPA in 

other litigation, memoranda from EPA and National 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 Coalition’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 publicly available on the EPA’s website. 

Information on a government website is subject to notice if, among 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. Richardson 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 Obligation Denial were made in the context of a different 

proceeding, the agency “does not dispute” their accuracy. EPA Judicial Notice 

Opposition at 9. 
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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 existing administrative record. We do not 

question that general principle. Even so, “we have recognized that consideration of 

extra-record materials is appropriate in ‘extremely limited’ 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 the Point of Obligation Denial. No more 

and no less, the document reflects a relevant policy position that the agency did not 

specifically analyze when granting the Refineries’ extension petitions. Additional 

special circumstances are that (1) the Biofuels Coalition had no opportunity to 

participate in compiling the administrative record; and (2) we take judicial notice 

only of the existence of the statements in the Point of Obligation Denial, not of their 

substantive truth. 

Finally, an organization known as the American Fuel & Petrochemical 

Manufacturers (“AFPM”) asks us to consider its amicus curiae brief in support of the 

Refineries. AFPM describes itself as “a trade association whose members comprise 

nearly all the petroleum refining capacity in the United States,” including several 

members which “operate small refineries” 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 movant’s interest” and 

“the reason why an amicus brief is desirable and why the matters asserted are 
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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 date of AFPM’s motion 

for leave. No refiling is necessary. 

VII. CONCLUSION

For the foregoing reasons, we vacate the EPA orders granting the exemption 

extension petitions of Cheyenne, Woods Cross, and Wynnewood. We remand these 

matters to the EPA for further proceedings consistent with this opinion. The Biofuels 

Coalition’s judicial notice motions are denied, 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 orders in this case, 

meaning that any item previously placed under seal by the parties will remain under 

seal.