United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 16, 2024 Decided July 26, 2024

Reissued August 14, 2024

No. 22-1073

SINCLAIR WYOMING REFINING COMPANY LLC AND SINCLAIR 

CASPER REFINING COMPANY LLC,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

AMERICAN COALITION FOR ETHANOL, ET AL.,

INTERVENORS

Consolidated with 22-1075, 22-1100, 22-1102, 22-1109, 

22-1114, 22-1115, 22-1122, 22-1128, 22-1129, 22-1130, 

22-1132, 22-1133, 22-1135, 22-1165, 22-1181, 22-1183, 

22-1185, 22-1186, 22-1187, 22-1188, 22-1189, 22-1190, 

22-1191, 22-1192, 22-1194, 22-1195, 22-1197, 22-1199, 

22-1219, 22-1238, 22-1240, 22-1246

On Petitions for Review of Final Actions 

of the Environmental Protection Agency
Michael R. Huston and Mark W. DeLaquil argued the 

causes for petitioners. With them on the joint briefs were Eric 

D. McArthur, Peter C. Whitfield, Daniel J. Feith, Peter A. 

Bruland, Jonathan G. Hardin, Alexandra M. Bromer, Samuel 

P. Hershey, Thomas E. Lauria, Andrew K. Gershenfeld, Jeffrey 

R. Holmstead, Brittany M. Pemberton, and Ian S. Shelton. Eric 

B. Wolff and Karl J. Worsham entered appearances.

Bryan J. Harrison and Jeffrey Hughes, Attorneys, U.S. 

Department of Justice, argued the causes for respondent. With 

them on the brief was Todd Kim, Assistant Attorney General.

Matthew W. Morrison argued the cause for intervenors in 

support of respondent. With him on the brief were Cynthia 

Cook Robertson, Shelby L. Dyl, and David M. Lehn.
No. 22-1074

SINCLAIR WYOMING REFINING COMPANY LLC,

PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

AMERICAN PETROLEUM INSTITUTE AND KERN OIL & REFINING 

CO.,

INTERVENORS

Consolidated with 22-1125, 22-1126, 22-1127, 22-1179, 

24-1008, 24-1010

On Petitions for Review of Final Actions

of the Environmental Protection Agency

David Lehn argued the cause and filed the briefs for 

petitioner Growth Energy.

Jeffrey R. Holmstead and Samuel P. Hershey argued the 

causes for petitioners Sinclair Wyoming Refining Company, 

LLC and Wynnewood Refining Company, LLC. With them 

on the briefs were Brittany M. Pemberton, Thomas E. Lauria, 
4

and Andrew K. Gershenfeld. Lucius B. Lau and Taylor R. 

Pullins entered appearances.

Benjamin Grillot, Attorney, U.S. Department of Justice, 

argued the cause for respondent. With him on the brief was 

Todd Kim, Assistant Attorney General.

Daniel J. Feith argued the cause for intervenors for 

respondent. With him on the brief were Eric D. McArthur, 

Peter C. Whitfield, Jonathan G. Hardin, Michael R. Huston, 

LeAnn Johnson Koch, Alexandra Magill Bromer, Karl J. 

Worsham, Ian S. Shelton, Robert A. Long, Jr., Kevin King, 

Thomas Brugato, Daniel G. Randolph, Robert J. Meyers, 

Elizabeth B. Dawson, Richard S. Moskowitz, and Tyler Kubik. 

Ryan C. Morris, John P. Wagner, and Eric B. Wolff entered 

appearances.

Before: PILLARD, RAO and PAN, Circuit Judges.

Opinion for the Court filed PER CURIAM.

PER CURIAM: The Clean Air Act’s (“CAA”) Renewable 

Fuel Standard (“RFS”) program requires oil refineries to 

introduce renewable fuels, such as ethanol, into the nation’s 

energy supply. Refineries meet their obligations under the RFS 

program by blending renewable fuels into fossil fuels that are 

sold at gas stations or by purchasing certain credits that indicate 

their compliance. Small refineries that would be “subject to a 

disproportionate economic hardship if required to comply” can 

petition the Environmental Protection Agency (“EPA”) for 

exemptions from the RFS program’s requirements.

In 2022, EPA denied all pending RFS-exemption petitions 

filed by small refineries (the “Denial Actions”). EPA 
5

determined that the only costs relevant to showing economic 

hardship in support of an exemption petition were those caused 

by compliance with the RFS program, and that refineries fully 

and efficiently pass such costs on to their customers. EPA thus 

concluded that small refineries do not face any economic 

hardship imposed by compliance with the RFS program. 

Because the agency’s rationale for denying the pending 

exemption petitions was a departure from its prior practice, and 

the denials came years after the relevant compliance years had 

ended, EPA eased the burden on certain small refineries by 

providing them with an alternative means of meeting their RFS 

obligations (the “Alternative Compliance Actions”). 

Specifically, EPA excused the small refineries from buying and 

submitting compliance credits for certain years. 

Several small refineries now challenge the Denial Actions 

as contrary to law and arbitrary and capricious. Growth 

Energy, a trade association whose members are ethanol 

producers, challenges the Alternative Compliance Actions as 

unauthorized by law. And two refineries—Sinclair Wyoming 

Refining Company and Wynnewood Refining Company—

argue that the April Alternative Compliance Action stopped 

short of providing them with adequate relief. 

We conclude that EPA’s rationale for denying all pending 

exemption requests was contrary to law and arbitrary and 

capricious. We therefore vacate the Denial Actions except with 

respect to two refineries—Company A and Company B—

which EPA correctly determined were ineligible for 

exemptions on other grounds unaffected by vacatur of the 

Denial Actions.

1

 We dismiss Growth Energy’s petition 

1 We refer to those two refineries as “Company A” and 

“Company B” because their identities are shielded by a protective 
6

because Growth Energy has failed to demonstrate that it has 

standing to challenge the Alternative Compliance Actions. We 

deny on the merits Sinclair’s petition challenging the April

Alternative Compliance Action, and we dismiss Wynnewood’s 

petition because it does not challenge a final agency action.

I. 

A. 

In 2005 and 2007, Congress amended the Clean Air Act to 

establish the RFS program, which aims to “increase the 

production of clean renewable fuels.” Energy Independence 

and Security Act of 2007, Pub. L. No. 110-140, 121 Stat. 1492 

(2007). “To move the United States towards greater reliance 

on clean energy, the Clean Air Act’s [RFS program] calls for 

annual increases in the amount of renewable fuel introduced 

into the U.S. fuel supply.” Growth Energy v. EPA, 5 F.4th 1, 

7 (D.C. Cir. 2021) (per curiam). 

To achieve the goals of the RFS program, Congress 

requires refineries and other obligated parties to meet

“‘applicable volume[s]’—mandatory and annually increasing 

quantities of renewable fuels that must be ‘introduced into 

commerce in the United States’ each year—and tasks [EPA] 

with ‘ensur[ing]’ that those annual targets are met.” Am. Fuel 

& Petrochemical Mfrs. v. EPA, 937 F.3d 559, 568 (D.C. Cir. 

2019) (per curiam) (alterations in original) (quoting 42 U.S.C. 

§ 7545(o)(2)(A)(i)). Congress dictated the applicable volumes 

through 2022 for three types of renewable fuel, and for a fourth 

type—biomass-based diesel—it dictated applicable volumes 

order. See Sinclair Wyo. Refin. Co. LLC v. EPA, No. 22-1073, Doc. 

1987069 (D.C. Cir. Feb. 22, 2023). 
7

through 2012. See 42 U.S.C. § 7545(o)(2)(B)(i)(IV). During 

those initial years, Congress required EPA to convert the 

applicable volumes into industry standards. Id.

§ 7545(o)(3)(B). For ensuing compliance years, Congress did 

not dictate applicable volumes but instead required EPA to do 

so. Id. § 7545(o)(2)(B)(ii). Generally, EPA’s RFS industry 

standards take the form of a percentage calculated by dividing 

the applicable volume of each renewable fuel by the agency’s 

estimate of the total volume of fuel the nation will consume—

e.g., if the applicable volume for a given year is 15 billion 

gallons of renewable fuel, and EPA estimates that the nation 

will consume 100 billion gallons of fuel that year, the standard 

will be 15 percent. See Wynnewood Refin. Co., LLC v. EPA, 

77 F.4th 767, 773 (D.C. Cir. 2023).

EPA measures industry compliance with the annual 

renewable-fuel requirements by using credits called RINs, 

short for “Renewable Identification Numbers.” Id. at 774

(noting that RINs “serve as the currency of the RFS Program”); 

see 40 C.F.R. § 80.1427(a). Refineries must obtain RINs and 

then submit or “retire” them to EPA to show that they have 

done their part to meet the RFS standard in each compliance 

year. See Wynnewood Refin. Co., 77 F.4th at 774. RINs are 

assigned to each “batch” of renewable fuel that is produced or 

imported for use in the United States. 40 C.F.R. § 80.1426(a), 

(e). When the renewable fuel is blended with conventional 

transportation fuel (e.g., gasoline or diesel), the RINs are 

“separated” from their assigned batch and “may be traded in 

the market” to other obligated parties in need of RINs “or used 

to demonstrate compliance” with the RFS program. 

Wynnewood Refin. Co., 77 F.4th at 774; see 40 C.F.R. 

§§ 80.1426(e), 80.1429(b).
8

Excess RINs that are neither used nor traded by the 

refinery that generated them can be “banked,” i.e., saved “for 

use in the next compliance year.” Ams. for Clean Energy v. 

EPA, 864 F.3d 691, 699 (D.C. Cir. 2017) (cleaned up). Banked 

RINs “are known in the industry as ‘carryover’ RINs.” Id. 

Carryover RINs may be used only in the subsequent 

compliance year, and otherwise “will expire.” Monroe Energy, 

LLC v. EPA, 750 F.3d 909, 913 (D.C. Cir. 2014) (citing 40 

C.F.R. § 80.1427(a)(6)). Small refineries that are unable to 

blend renewable fuel must purchase RINs to comply with the 

RFS program, 42 U.S.C. § 7545(o)(5)(D), or they must apply 

for an exemption from the requirements of the program based 

on disproportionate economic hardship, id. § 7545(o)(9).

B. 

When Congress created the RFS program, it recognized 

that the program “could work special burdens on small 

refineries.” HollyFrontier Cheyenne Refin. LLC v. Renewable 

Fuels Ass’n, 594 U.S. 382, 386 (2021). Congress therefore 

provided three categories of exemptions for small refineries, 

i.e., refineries that produce, on average, fewer than 75,000 

barrels of fuel a day. See 42 U.S.C. § 7545(o)(1)(K). 

First, Congress provided a blanket exemption for all small 

refineries until calendar year 2011. See id. § 7545(o)(9)(A)(i) 

(“The requirements of paragraph (2) shall not apply to small 

refineries until calendar year 2011.”). 

Second, recognizing that hardship could continue past 

2011, Congress directed the Department of Energy (“DOE”) to 

conduct a study “to determine whether compliance with the 

[RFS program] would impose a disproportionate economic 

hardship on small refineries.” Id. § 7545(o)(9)(A)(ii)(I). If 
9

DOE determined that a small refinery “would be subject to a 

disproportionate economic hardship if required to comply 

with” the RFS program, EPA was required to extend the 

exemption for any such refinery for at least two years. Id.

§ 7545(o)(9)(A)(ii)(II). 

Third, and most relevant here, Congress provided that “[a] 

small refinery may at any time petition” EPA “for an 

extension” of its exemption from RFS obligations “for the 

reason of disproportionate economic hardship.” See id.

§ 7545(o)(9)(B)(i). EPA is tasked with “evaluating [such] 

petition[s],” and in doing so must “consult[] with the Secretary 

of Energy” and “consider the findings” of DOE’s hardship 

report, as well as “other economic factors.” Id.

§ 7545(o)(9)(B)(ii). Significantly, relief under this provision 

must take the form of an “extension” of Congress’s initial 

blanket exemption; the statute does not provide a mechanism 

for EPA to grant hardship exemptions to small refineries that 

did not receive the initial exemption. See id.; see also 

HollyFrontier, 594 U.S. at 397.2

 

2 In relevant part, the text of 42 U.S.C. § 7545(o)(9)(B) reads as 

follows:

(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 
10

DOE’s first small-refinery study in 2009 found that, in a 

liquid and competitive RIN market, compliance with the RFS 

program would not impose disproportionate economic 

hardship. But in 2011, DOE issued a second study, which 

found that small refineries “have particular obstacles that could 

make compliance more costly than those of large integrated 

companies.” DOE, Small Refinery Exemption Study at 3 

(2011) (J.A. 15).

3

 In particular, the 2011 DOE Study 

concluded that small refineries may lack sufficient access to 

capital to purchase RINs. It also determined that small 

refineries may experience economic hardship for reasons 

beyond the cost of RINs, noting that small refineries often (1) 

sell to local or niche markets that are less accepting of 

renewable fuel; (2) sell diesel fuel, which is harder to blend 

with renewables; and (3) may be subject to state regulations 

that require refineries to sell unblended fuel. Moreover, the 

2011 DOE Study considered economic hardship that was 

unrelated to the RFS program, such as “shutdown[s] due to [] 

accident[s] and subsequent loss[es] of revenue.” Id. at 36 (J.A. 

48). 

The 2011 DOE Study also included a scoring matrix that 

could be used to assess which small refineries would face 

disproportionate economic hardship. For over a decade after 

the issuance of the 2011 DOE Study—until the Denial Actions 

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.

3 All “J.A.” cites are to the joint appendix in the 22-1073 case 

unless otherwise noted.
11

at issue here—EPA relied on DOE’s findings and applied 

DOE’s scoring matrix to determine whether to grant hardship 

exemptions. During that period, EPA nearly always granted 

hardship relief when DOE’s scoring matrix recommended it.4

Meanwhile, in 2015, EPA released an assessment of RIN 

market dynamics (the “Burkholder Study”). In that study, EPA 

concluded that the price of gasoline and diesel includes the cost 

of acquiring RINs, which means that refineries pass through 

the price of acquiring RINs to their consumers when they sell 

fuel (the “RIN cost passthrough theory”). Nevertheless, EPA 

did not immediately incorporate the findings of the Burkholder 

Study into its assessment of hardship petitions. Instead, EPA 

continued to follow DOE’s matrix, which takes into 

consideration factors such as access to capital and unique 

market demand for non-renewable fuel.

C.

In Renewable Fuels Association v. EPA (“RFA”), 948 F.3d 

1206 (10th Cir. 2020), the Tenth Circuit reviewed EPA’s 

interpretation of the RFS provisions of the Clean Air Act and 

the agency’s decision to grant certain hardship exemptions for 

the 2016 and 2017 compliance years. See id. at 1214. The 

4 The scoring matrix relies on indices that tracked “two broad 

components” of disproportionate economic hardship: a “high cost of 

compliance relative to the industry average,” and “significant 

impairment of [] refinery operations” caused by the cost of 

compliance. J.A. 15. The two indices incorporate information 

relevant to disproportionate economic hardship that go beyond the 

costs of compliance with the RFS program. Id. 
12

Tenth Circuit concluded that EPA erred in three relevant 

respects. 

First, the Tenth Circuit held that any refineries that had not 

received continuous exemptions from compliance since the 

beginning of the RFS program were ineligible for an 

“extension” under the statute. Id. at 1244-49. 

Second, the court determined that EPA’s practice of 

considering “hardships beyond those caused by RFS 

compliance” in granting exemptions was contrary to law. Id. 

at 1253-54. It noted that the statutory language allowed 

refineries to petition for exemptions based on “disproportionate 

economic hardship if required to comply with RFS 

obligations,” making clear that “renewable fuels compliance 

must be the cause of any disproportionate hardship.” Id. at 

1253 (cleaned up) (emphasis added). Accordingly, the court 

concluded, EPA erred by granting “extensions of exemptions 

based at least in part on hardships not caused by RFS 

compliance.” Id. at 1254. 

Third, the court held that EPA had not adequately 

accounted for its own theory that all costs of complying with 

the RFS program could be passed on to consumers. The Tenth 

Circuit noted that the upshot of the RIN cost passthrough 

theory was that although refineries were “directly paying for 

the RINs they buy on the market,” they were “passing that cost 

along in the form of higher wholesale gasoline and diesel 

prices.” Id. at 1256 (cleaned up). EPA’s analysis of economic 

hardship in support of the 2016 and 2017 exemptions was 

flawed, according to the court, because the agency “did not 

analyze the possibility of RIN cost recoupment.” Id.
13

The Supreme Court partially reversed the Tenth Circuit’s 

holding. See HollyFrontier, 594 U.S. 382. The Court held that 

a small refinery may receive an “extension” of an exemption 

even if it had not been continuously exempted from complying 

with the requirements of the RFS program. See id. at 399-400. 

The Court did not address the Tenth Circuit’s alternative 

holdings regarding the scope of the hardships that may be 

considered in granting an RFS exemption, or the effect of the 

RIN cost passthrough theory. 

Nevertheless, on remand from the Supreme Court, the 

Tenth Circuit vacated its entire decision. See RFA v. EPA,

No. 18-9533, 2021 WL 8269239 (10th Cir. July 27, 2021). 

D.

In the aftermath of the Supreme Court’s HollyFrontier

decision and the vacatur of the Tenth Circuit’s decision in RFA 

v. EPA, EPA informed the small refineries with pending 

hardship-exemption petitions that it was considering denying 

all the pending petitions, which spanned compliance years 

2016 to 2021. Then, in April 2022, EPA denied 36 petitions 

for compliance year 2018, including 31 petitions it had initially 

granted. EPA, April 2022 Denial of Petitions for RFS Small 

Refinery Exemptions (2022) (J.A. 2943-3016) (“April 

Denial”). In June 2022, EPA issued a materially identical 

decision denying all remaining pending hardship petitions.

EPA, June 2022 Denial of Petitions for RFS Small Refinery 

Exemptions (2022) (J.A. 3120-94) (“June Denial”). The 

Denial Actions broke from EPA’s prior approach in several 

ways, influenced by the reasoning of the Tenth Circuit’s 

opinion in RFA v. EPA. 
14

First, “primarily informed by the RFA opinion,” EPA 

reinterpreted the relevant statutory language to require 

refineries to demonstrate that they experienced 

disproportionate economic hardship caused solely by 

compliance with the RFS program. See April Denial at 17 (J.A. 

2961).

Second, and relatedly, EPA applied the RIN cost 

passthrough theory to conclude that RFS compliance would not 

impose any economic hardship on any refinery. Relying on the 

Burkholder Study and other market data, EPA found that RIN 

markets are efficient and liquid, and that the price of fuel on 

any given day accounts for that day’s RIN prices. Thus, 

refineries can purchase RINs ratably—that is, 

contemporaneously with the sale of their fuel—and pass 

through the RIN costs to consumers in the price of the fuel. 

Based on those assumptions, EPA concluded that “no 

small refinery experiences [disproportionate economic 

hardship] as a result of compliance with the RFS program.” Id. 

at 18 (J.A. 2962). Accordingly, it denied all the pending smallrefinery hardship-exemption petitions.

EPA also relied on alternative grounds in denying the 

hardship petitions filed by two refineries—Company A and 

Company B. EPA determined that those two refineries were 

ineligible for relief because they had not received the initial 

blanket exemption and therefore could not be granted an 

“extension” of relief under the terms of the statute. See id. at 

22 (J.A. 2966) (“[T]he language of the statute indicates that, 

without having received the [initial blanket exemption,] there 

is nothing for a small refinery to petition EPA to extend 

temporally” such that “if a small refinery did not receive the 
15

original statutory blanket exemption, it is ineligible to have 

EPA extend the duration of that exemption.”). 

E.

EPA recognized that the Denial Actions would pose 

special difficulties for the small refineries whose hardship 

petitions for certain years initially were granted by the agency

before the Tenth Circuit’s decision in RFA, but later were 

denied in light of the Tenth Circuit’s intervening adverse 

decision. Thus, EPA provided alternative ways for small 

refineries in that predicament to comply with their RFS 

obligations.

In conjunction with the April Denials, EPA provided 

alternative RFS compliance options to the 31 small refineries 

that previously had received exemptions for the 2018 

compliance year. EPA, April 2022 Alternative RFS 

Compliance Demonstration Approach for Certain Small 

Refineries (2022) (J.A. (22-1074) 1-24) (“April Compliance 

Action”). EPA determined that those 31 small refineries no 

longer held RINs necessary to comply with their 2018 RFS 

obligations, and that requiring them to seek new RINs would 

lead to a drawdown of the carryover RIN bank that would 

threaten the integrity of the RFS program. Thus, under the 

April Compliance Action, the 31 small refineries that originally 

received an exemption from their 2018 compliance obligations 

were required to submit annual compliance reports but were 

not required to retire any additional RINs to meet their 

reinstated 2018 RFS obligations. 

EPA acknowledged that the June Denial, which denied all 

remaining hardship petitions filed by small refineries, affected 

three refineries whose 2016 and 2017 exemption petitions 
16

previously had been granted. Thus, EPA offered those small 

refineries the same alternative means of compliance that had 

been provided in the April Compliance Action. EPA, June 

2022 Alternative RFS Compliance Demonstration Approach 

for Certain Small Refineries (2022) (J.A. (22-1074) 358-85) 

(“June Compliance Action”). We refer to the June and April 

Compliance Actions together as the Alternative Compliance 

Actions.

F.

Numerous refineries subject to the Denial Actions filed 

petitions for review in this court. Those petitions were 

consolidated and are now before us. Fifteen of those 

petitioners also filed petitions for review in other circuits where 

their refineries are located—the Third, Fifth, Seventh, Ninth, 

Tenth, and Eleventh Circuits. The other circuits, except for the 

Fifth Circuit, concluded that all the cases challenging the 

Denial Actions belonged in the D.C. Circuit: They thus either 

transferred those petitions for review to this court or dismissed 

them. The Fifth Circuit, however, held otherwise and reached 

a decision on the merits. See Calumet Shreveport Refin., LLC 

v. EPA, 86 F.4th 1121 (5th Cir. 2023). In Calumet, the Fifth 

Circuit held, in relevant part, that (1) EPA’s interpretation of 

the exemption provision to require economic hardship caused 

solely by RFS-program costs was “foreclosed by the statute’s 

text”; and (2) the RIN cost passthrough theory was “contrary 

to the evidence” before the agency because it was 

“implausible” that “all refineries can completely pass on their 

RIN costs.” Id. at 1138, 1140.

Related petitions were filed to challenge the Alternative 

Compliance Actions. First, Growth Energy, a trade association 

whose members are ethanol producers, asserts that the 
17

Alternative Compliance Actions are unlawful because EPA 

lacked statutory authority to absolve refineries from purchasing 

RINs to meet their obligations under the RFS program. 

Second, two refineries—Sinclair and Wynnewood—challenge 

the April Compliance Action as not extending far enough.

II.

The petitioners argue the Denial Actions are contrary to 

law because EPA’s interpretation unlawfully narrows the RFS 

program’s small refinery hardship exemption. We agree.

A.

The CAA authorized an initial exemption from RFS 

obligations for all small refineries. 42 U.S.C. 

§ 7545(o)(9)(A)(i). A two-year extension of that blanket 

exemption was available for small refineries “subject[ed] to a 

disproportionate economic hardship if required to comply 

with” the RFS program. Id. § 7545(o)(9)(A)(ii)(II); see also 

id. § 7545(o)(9)(A)(ii)(I) (instructing the Secretary of Energy 

to determine when RFS compliance “would impose a 

disproportionate economic hardship on small refineries”).

After that extension, small refineries could “at any time” 

petition EPA for further extensions of the hardship exemption 

“for the reason of disproportionate economic hardship.” Id.

§ 7545(o)(9)(B)(i). When deciding those petitions, EPA must 

consider the 2011 DOE Study and “other economic factors.” 

Id. § 7545(o)(9)(B)(ii).

In the Denial Actions, EPA interpreted the CAA to require

a refinery “have disproportionate RFS compliance costs and 

actual economic hardship due to those disproportionate RFS 

compliance costs” to qualify for a hardship exemption. April 
18

Denial at 18 (J.A. 2962). In other words, an exemption could 

be granted only if a small refinery’s RFS compliance costs were 

disproportionate. EPA further reasoned that because small 

refineries comply with the RFS program by generating or 

purchasing and then retiring RINs, the only compliance cost is 

the cost of generating or purchasing RINs. Thus, EPA 

concluded, for a petitioner to qualify for an exemption 

extension, it must experience a hardship from disproportionate 

RIN costs alone. 

EPA also limited “the ‘other economic factors’ EPA may 

consider when evaluating [exemption] petitions” to factors 

“related to determining whether the small refinery’s 

compliance with its RFS obligations is what caused its alleged” 

disproportionate economic hardship. Id. (J.A. 2962). As we 

describe at length in the background section and in the next 

part, under EPA’s passthrough theory, refineries pass the cost 

of purchasing RINs through to end purchasers. EPA relied on 

this theory to conclude that refineries cannot experience 

disproportionate RFS compliance costs, so no economic 

hardship can result. Id. at 29 (J.A. 2973).

Based on its interpretation of the CAA and in conjunction 

with its economic theory, EPA denied all of the pending 

hardship petitions for failing to show disproportionate 

economic hardship from RFS compliance. Id. at 1 (J.A. 2945).

B.

EPA’s definition of disproportionate economic hardship is 

inconsistent with the plain meaning of the hardship exemption 
19

and contradicts other provisions in the CAA.5 The Denial 

Actions exclusively focused on compliance costs instead of 

economic hardship, neglected the CAA’s directive to consider 

“other economic factors,” and introduced an overly strict 

causation requirement.

First, while Congress conditioned the exemption on a 

showing of “economic hardship,” EPA essentially considered 

compliance costs as the only qualifying economic hardship. Id.

at 28 (J.A. 2972). The natural meaning of “hardship,” 

however, encompasses more than compliance costs. A 

hardship is a “[p]rivation; suffering or adversity.” BLACK’S 

LAW DICTIONARY (11th ed. 2019); see also Sinclair Wyo. 

Refin. Co. v. EPA, 887 F.3d 986, 996-97 (10th Cir. 2017) 

(defining hardship as “something that ‘makes one’s life hard or 

difficult’” (citation omitted)). A cost is a far narrower concept, 

“[t]he amount paid or charged for something; price or 

expenditure.” BLACK’S LAW DICTIONARY (11th ed. 2019).

Costs can certainly impose a hardship, but the economic 

hardship imposed by a regulatory action can extend beyond 

costs. 

Many considerations, from geographic to refinery-specific 

factors, could result in the same compliance costs affecting

refineries differently. The Supreme Court in HollyFrontier 

explained that the CAA’s authorization to petition “at any 

time” recognized “the possibility that small refineries might 

apply for exemptions in different years in light of market 

fluctuations and changing hardship conditions,” factors that 

extend beyond compliance costs. HollyFrontier, 594 U.S. at 

5 Our analysis and conclusion that the Denial Actions are contrary 

to law is consistent with the Fifth Circuit’s decision in Calumet 

Shreveport Refining, 86 F.4th at 1137-40. 
20

393. We previously affirmed EPA’s broad discretion to 

consider a range of factors when deciding hardship petitions.

Hermes Consol., LLC v. EPA, 787 F.3d 568, 574-75 (D.C. Cir. 

2015).

But regulatory discretion and flexibility do not permit EPA 

to restrict the meaning of “economic hardship” in a manner 

inconsistent with the CAA. While EPA may consider a variety 

of economic factors when deciding what a hardship is, it cannot 

reduce the broad statutory term “economic hardship” to only 

one factor. See Sinclair Wyo. Refin. Co., 887 F.3d at 996 

(holding EPA could not consider only the long-term viability 

of the refinery when determining whether it faced an economic 

hardship). EPA’s interpretation of the CAA unduly narrowed 

“economic hardship” to include only compliance costs.6

Second, a blinkered focus on compliance costs runs afoul 

of the statutory directive that EPA consider “other economic 

factors,” in addition to economic hardship, when deciding 

whether to extend a hardship petition. 42 U.S.C. 

§ 7545(o)(9)(B)(ii). In the Denial Actions, EPA limited “other 

economic factors” to “determining whether the small refinery’s 

compliance with its RFS obligations is what caused its alleged” 

disproportionate economic hardship. April Denial at 18 (J.A. 

2962). This misses the mark. 

The consideration of “other economic factors” cannot be 

reduced to the economic hardship of RFS compliance because 

EPA must “consider the findings of the [2011 DOE Study] and

6 We conclude EPA’s interpretation was contrary to law. 

However, we have no occasion to otherwise determine the meaning 

of “disproportionate economic hardship,” which Congress did not 

define in the CAA. See 42 U.S.C. § 7545(o)(1).
21

other economic factors.” 42 U.S.C. § 7545(o)(9)(B)(ii) 

(emphasis added). The 2011 DOE Study is the component that 

calls for “determin[ing] 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). In the CAA, Congress instructs EPA to 

consider “other economic factors” in addition to considering 

economic hardship from RFS compliance. 

EPA’s definition is overly narrow because it fails to 

account for EPA’s obligation to consider “other economic 

factors” beyond those in the DOE Study. “Congress was aware 

the RFS Program might disproportionately impact small 

refineries because they lack the inherent scale advantages of 

large refineries.” Sinclair Wyo. Refin. Co., 887 F.3d at 989.

EPA’s Denial Actions specifically excluded numerous factors 

and did not explain what “other economic factors” it will 

consider. April Denial at 60 (J.A. 3004). EPA’s analysis 

suggests that there are no permissible factors outside of RFS 

compliance costs—an interpretation that reads “other 

economic factors” out of the statute.

Relying on our decision in Hermes, EPA argued the 

CAA’s silence on the definition of “disproportionate economic 

hardship” and its failure to identify particular “other economic 

factors” to be considered gives EPA “substantial discretion” to 

implement the RFS exemptions. April Denial at 17 (J.A. 2961)

(quoting Hermes, 787 F.3d at 575). But that discretion obtains 

only “[a]s long as EPA consults with DOE and considers the 

2011 Study and ‘other economic factors.’” Hermes, 787 F.3d 

at 575. EPA enjoys no discretion to refuse to consider “other 

economic factors.”
22

Third, EPA’s approach overreads the requirement that a 

refinery’s hardship be caused by RFS compliance. EPA 

reasoned that hardships unrelated to RFS compliance could not 

be considered when granting an exemption and that reliance on 

other factors was beyond EPA’s statutory authority. April 

Denial at 26-28 (J.A. 2970-72). EPA maintains that its 

interpretation is informed by the Tenth Circuit’s decision in 

RFA v. EPA, which held that “hardships caused by overall 

economic conditions are different from hardships caused by 

compliance with statutory renewable fuel obligations.” 948 

F.3d at 1253. In consideration of that ruling, EPA says it 

“determined that disproportionate economic hardship must be 

caused only by RFS compliance to allow EPA to grant an 

exemption petition.” Resp. Br. 43 (emphasis added). But that

holding is neither law in this circuit nor in the Tenth Circuit, 

where it has since been vacated. See RFA v. EPA, 2021 WL 

8269239; see also HollyFrontier, 594 U.S. at 399-400

(reversing RFA v. EPA, 948 F.3d 1206). 

EPA’s interpretation of the small refinery hardship 

exemption imposes a limitation that goes beyond the plain 

meaning of the statute. While the necessary economic hardship 

must be caused by RFS compliance, the statute nowhere 

suggests that this must be the sole cause of the hardship. To 

describe the relationship between RFS compliance and 

economic hardship, the CAA uses the phrases “subject to . . . if 

required to comply with” and “compliance . . . would 

impose.”7 Courts have found similar terms—including “based 

7 This causal language describes the requirements for granting an 

initial hardship exemption extension. 42 U.S.C. 

§ 7545(o)(9)(A)(ii)(I), (II). Although the language is not repeated in 

the provision for subsequent extensions, the same requirement that 

RFS compliance “impose” the hardship necessarily applies to any 
23

on,” “by reason of,” and “results from”—to require simple butfor causation. See Burrage v. United States, 571 U.S. 204, 213-

14 (2014) (collecting cases). A “but-for cause” is “[t]he cause 

without which the event could not have occurred.” BLACK’S 

LAW DICTIONARY (11th ed. 2019). For RFS compliance to 

cause a hardship, the hardship would not have occurred without 

compliance. But that does not foreclose other factors 

contributing to the hardship. 

Moreover, Congress required sole causation elsewhere in 

the CAA but did not impose that requirement for the small 

refinery hardship exemption. The CAA uses the word “solely” 

when describing the required causation standard in other parts 

of the statute.8 “[W]here Congress includes particular 

language in one section of a statute but omits it in another 

section of the same Act, it is generally presumed that Congress 

acts intentionally and purposely in the disparate inclusion or 

exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983) 

(citation omitted). Although these provisions of the CAA were 

enacted at different times than the small refinery hardship 

exemption, the principle is the same. We “may not narrow a 

subsequent extension precisely because it is an extension of the initial 

exemption. Id. § 7545(o)(9)(B)(i); see also HollyFrontier, 594 U.S.

at 393-94. 8 See, e.g., 42 U.S.C. § 7545(t)(8) (discussing amenability to “an 

enforcement action or penalties under subsection (d) solely arising 

from the blending of compliant reformulated gasolines”); id.

§ 7407(e)(3) (“No compliance date extension . . . shall cease to be 

effective by reason of the regional limitation . . . if the violation of 

such limitation is due solely to a redesignation of a region under this 

subsection.”); id. § 7412(b)(3)(A) (“The Administrator may not deny 

a petition solely on the basis of inadequate resources or time for 

review.”).
24

provision’s reach by inserting words Congress chose to omit.” 

Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1725 (2020). 

EPA argues the statute need not include “magic words, 

such as ‘solely,’” to impose a strict causation standard. But 

“‘sole’ and but-for cause are very different.” Ponce v. 

Billington, 679 F.3d 840, 845 (D.C. Cir. 2012). In the Title VII 

context, for example, the Supreme Court and our court have 

explained “the statutory phrase ‘because of,’” a but-for 

causation requirement, “does not mean ‘solely because of.’” 

Porter v. Natsios, 414 F.3d 13, 18 (D.C. Cir. 2005) (citation 

omitted). Nothing in EPA’s argument justifies reading

“imposed” to mean “solely imposed.” 

Although EPA has a measure of flexibility when 

implementing the RFS program and its exemptions, EPA’s 

interpretation in the Denial Actions goes beyond its statutory 

discretion and conflicts with the plain meaning of the CAA.9

C.

EPA also erred by concluding that nonratable RIN 

purchases could not be considered a “disproportionate 

economic hardship” because they are not caused by RFS 

compliance. 

In the Denial Actions, EPA explained that part of the 

requirement to consider “other economic factors” includes 

9 EPA primarily argues that its interpretation is the best reading 

of the statute. In the alternative, however, EPA maintains its 

construction is reasonable under Chevron. We need not consider this 

alternative argument in light of the Supreme Court’s recent decision 

in Loper Bright Enterprises v. Raimondo, which overrules Chevron. 

See 144 S. Ct. 2244 (2024). 
25

considering economic theories that affect hardships imposed 

by RFS compliance. One of those theories is EPA’s theory of 

RIN cost passthrough. April Denial at 29 (J.A. 2973).

According to EPA, the market price of unblended gasoline and 

diesel increases to reflect the price of RINs, allowing refineries 

to pass the RIN cost through to fuel purchasers and to recover 

the entire cost of acquiring RINs by selling at the market price.

Id. at 37 (J.A. 2981). Because refineries could pass on their 

compliance costs, EPA treats the decision to purchase RINs 

nonratably, along with any attendant costs, as a “business 

choice.” It follows that the cost of purchasing RINs nonratably 

“cannot be a basis for hardship relief” because that cost “does 

not constitute [disproportionate economic hardship] caused by 

the cost of compliance with the RFS program.” Id. at 55 (J.A. 

2999).

EPA’s refusal to consider the costs of nonratable RIN 

purchases ignores the compliance flexibility the CAA 

provides. The CAA conditions the hardship exemption, and 

subsequent extensions, only on RFS compliance being a cause 

of the hardship. See 42 U.S.C. § 7545(o)(9)(A)(ii). The CAA 

is silent on the required timing of RIN purchases, except to 

require refineries to meet their RFS volume targets annually. 

See id. § 7545(o)(2)(A)(i). Whenever RINs are purchased, 

their costs are “impose[d]” by RFS compliance because 

refineries purchase RINs only to comply with the RFS 

program. 

Insofar as the CAA addresses the timing of RIN purchases, 

it expressly recognizes the availability of nonratable RIN 

purchasing. The RIN deficit carryover provision permits 

refineries that are “unable to generate or purchase sufficient 

credits to meet the [RFS] requirements . . . to carry forward a 

renewable fuel deficit” under certain conditions. Id.
26

§ 7545(o)(5)(D). The refineries may then satisfy those RFS 

requirements through RIN purchases over the next year. The 

RIN deficit carryover provision is no mere afterthought. 

Carryover RINs and RIN deficits are of “critical importance,” 

providing essential “flexibility and liquidity” in the renewable 

fuel market. Ams. for Clean Energy, 864 F.3d at 714-15. And 

these carryover RIN deficits are necessarily satisfied by 

purchasing RINs nonratably. EPA’s interpretation effectively 

penalizes small refineries for purchasing RINs nonratably, 

despite Congress’s provision of a RIN deficit carryover 

mechanism that specifically contemplates nonratable RIN 

purchases.

EPA’s policy justification for excluding nonratable RIN 

purchases as a ground for economic hardship is unmoored from 

the CAA. To begin with, the agency acknowledged that 

nonratable purchases are lawful. April Denial at 55 (J.A. 

2999). Nonetheless, EPA insisted that purchasing RINs 

nonratably is “contrary to the purpose of the program” because 

the RFS program exists to “‘ensure that gasoline sold . . . in the 

United States . . . contains the applicable volume of renewable 

fuel.’” Id. (J.A. 2999) (quoting 42 U.S.C. § 7545(o)(2)(A)(i)).

But the RFS program requires refineries to meet annual

requirements, not to purchase RINs ratably. Refineries must 

retire RINs annually, regardless of when they purchase them. 

EPA also argues its new interpretation satisfies Congress’s 

intention to make the hardship exemption “temporary.” But 

the term “temporary” applies only to the initial two-year 

extension of the exemption. 42 U.S.C. § 7545(o)(9)(A) (titled 

“Temporary exemption”). The continuing extension of the 

hardship exemption proceeds from subparagraph (B), which 

nowhere purports to be “temporary.” To the contrary, it 

provides a mechanism for the ongoing renewal of exemptions. 
27

See id. § 7545(o)(9)(B)(i) (permitting hardship petitions “at 

any time”). Moreover, the Supreme Court has already rejected 

policy arguments for “taper[ing] down” the number of 

refineries receiving hardship exemptions as inconsistent with 

the statutory text. HollyFrontier, 594 U.S. at 399 (cleaned up). 

The CAA and Supreme Court precedent make clear that EPA 

cannot sunset the small refinery exemption by regulatory fiat. 

* * *

A statutory exemption cannot swallow the rule, but neither 

can we read a statute’s purposes so broadly as to render the 

exemptions superfluous. The RFS program reflects a carefully 

crafted legislative bargain to promote renewable fuels, but also 

to provide an exemption mechanism for small refineries. EPA 

enjoys some flexibility with respect to implementing the 

program, but it cannot rewrite the balance established by 

Congress. EPA’s interpretation cannot be squared with the 

CAA. Accordingly, we hold the Denial Actions are contrary 

to law.

III.

Petitioners next argue that EPA’s Denial Actions are 

arbitrary and capricious. We again agree. 

We must “hold unlawful and set aside agency action, 

findings, and conclusions” that are “arbitrary, capricious, [or] 

an abuse of discretion.” 5 U.S.C. § 706(2). Under this 

standard, an agency must engage in reasoned decision making. 

See Michigan v. EPA, 576 U.S. 743, 750 (2015). That means 

that the agency must “examine the relevant data and articulate 

a satisfactory explanation for its action.” FCC v. Fox 

Television Stations, Inc., 556 U.S. 502, 513 (2009) (cleaned 
28

up). Agency action is arbitrary and capricious if it “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.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State 

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Moreover, 

if an agency changes positions, it must “display awareness that 

it is changing position.” Fox Television, 556 U.S. at 515 

(emphasis in original). Thus, an agency “may not, for example, 

depart from a prior policy sub silentio.” Id.

In the Denial Actions, EPA concluded that small refineries 

do not face disproportionate economic hardship because they 

bear no costs of complying with the RFS program. That is so, 

in EPA’s view, because (1) RIN markets are efficient and 

liquid, and the price of fuel on any given day accounts for that 

day’s RIN prices; (2) small refineries may purchase RINs 

“ratably,” or contemporaneously with their fuel sales; and (3) 

small refineries therefore can pass through the cost of RINs to 

their customers. April Denial at 55 (J.A. 2999); see id. at B-63 

(J.A. 3106) (“[T]he very concept of ratable RIN purchases 

means that the acquisition of the RIN is approximately 

concurrent with the sale of the fuel.”). 

EPA also determined that small refineries that cannot 

blend fuel and must purchase RINs do not face 

disproportionate compliance costs compared to refineries that 

generate RINs because RIN-generating refineries must 

discount their fuel prices by the full value of the RINs that they 

sell. Under EPA’s theory, there is no advantage to generating 

RINs by blending fuel as opposed to buying RINs from 

others—either way, fuel prices will adjust to account for the 
29

value of the RINs that are contemporaneously bought or sold. 

Cf. Alon Refin. Krotz Springs, Inc. v. EPA, 936 F.3d 628, 650 

(D.C. Cir. 2019) (noting that EPA’s theory assumes that 

refineries that “offer finished fuel without attached RINs . . . 

must discount their blended fuel by roughly the value of the 

RINs that they detached” in order to ensure that their fuel is 

offered “at a competitive price” (emphasis omitted)).

Petitioners dispute EPA’s central premise. They argue that 

they cannot always purchase RINs ratably, and that fact fatally 

undermines EPA’s analysis. See April Denial at B-63 (J.A. 

3106) (arguing that small refineries cannot “acquire RINs 

ratably due to a lack of capital, an inability to afford the RINs, 

or specific limitations in their ability to buy RINs in the proper 

lot sizes without facing a much steeper cost to acquire the 

RINs”); id. at B-39 (J.A. 3082) (arguing that ratable RIN 

purchases are impossible on weekends). According to 

petitioners, EPA’s misunderstanding of the dynamics and 

features of the RIN market render its denial of their hardship 

petitions arbitrary and capricious. We agree with petitioners 

for three reasons. 

First, EPA’s position on the ready availability of 

contemporaneous RIN purchases is the precise opposite of its 

prior stance on this point, and the agency offers no explanation 

for its change in view. See Fox Television, 556 U.S. at 515 

(noting that an agency “may not . . . depart from a prior policy 

sub silentio”). By way of background, on October 11, 2018, 

the President directed EPA to “address RIN price manipulation 

claims and increase transparency in the RIN market.” 

Modifications to Fuel Regulations to Provide Flexibility for 

E15; Modifications to RFS RIN Market Regulations, 84 Fed 

Reg. 10,584, 10,608 (proposed Mar. 21, 2019). In response, 

EPA considered a proposal to require refineries to retire RINs 
30

in real time (i.e., ratably) rather than yearly. See id. at 10,616 

(noting that EPA “considered a provision that would require 

RIN retirement for every batch of gasoline or diesel 

immediately or shortly after it is produced or imported”). But 

EPA declined even to seek comment on that proposal. It stated 

that it did not “believe a practical implementation framework 

for [real-time RIN retirement] exist[ed].” Id. EPA reasoned 

that “[i]t would be virtually impossible for the market to 

instantaneously meet such tight demand for RINs” by refineries 

and other regulated parties because “[t]he generation of RINs 

and the production and import of transportation fuel are not 

time aligned over the course of the year.” Id. In other words, 

because RIN generation “is not consistent throughout the 

year,” there were “many months” where “the demand for RINs 

exceeded the generation of new RINs.” Id. In EPA’s view, 

this “lack of alignment in time between RIN generation and 

gasoline/diesel fuel demand render[ed] ‘real time’ RIN 

retirement infeasible.” Id. Although EPA’s 2019 action 

addressed the timing of RIN retirements, which is not at issue 

here, EPA’s 2019 reasoning regarding RIN purchases is 

germane to our review. 

EPA’s Denial Actions represent a sharp departure from its 

prior conclusion. Despite previously finding that real-time 

RIN retirement was “infeasible” and “virtually impossible”

based in part on the impracticability of ratably acquiring the 

needed RINs, id., EPA here concluded that small refineries 

may purchase RINs ratably and should do so to avoid economic 

hardship, see April Denial at 54 (J.A. 2998) (“Obligated parties 

that choose to purchase the RINs they need for compliance on 

a ratable basis . . . will recover the cost of the RINs they 

purchase in the sales price of the petroleum fuel they sell.”). 

EPA made no attempt to explain its about-face on this critical 

assumption, and that failure of explanation alone renders 
31

EPA’s Denial Actions arbitrary and capricious. See Fox 

Television, 556 U.S. at 515.10

Second, the record evidence did not adequately support 

EPA’s assumption that ratable RIN purchases are consistently 

available to small refineries. See State Farm, 463 U.S. at 43 

(noting that an agency acts arbitrarily and capriciously when it 

“offer[s] 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”). Specifically, EPA 

failed to sufficiently account for weekend fuel sales. RIN price 

quotes are “not available for weekends and major holidays,” 

but fuel is still sold on those days—indeed, 28 percent of all 

fuel transactions occur on Saturday and Sunday. April Denial 

at B-39 (J.A. 3082). A refinery selling fuel on weekends thus 

cannot purchase RINs ratably—it must purchase RINs 

preemptively based on Friday’s prices, or belatedly based on 

Monday’s prices. This reality undercuts EPA’s passthrough 

theory—if the market price of RINs decreases over the 

weekend, weekend fuel prices presumably will take account of 

the lower price and also will drop. Accordingly, a refinery that 

purchased RINs on Friday will suffer an economic loss because 

10 EPA asserts that arguments regarding its change in position 

were never raised before the agency. EPA is incorrect: Several 

commenters argued before the agency that EPA’s new position was 

inconsistent with its prior rejection of a real-time RIN retirement 

requirement. See Par Pacific, Comments on “Proposed RFS Small 

Refinery Exemption Decision” at 13 & n.63 (Feb. 7, 2022) (J.A. 390

& n.63); Delek US Holdings, Comments on “Proposed RFS Small 

Refinery Exemption Decision” at 2 & n.3 (Dec. 14, 2021) (J.A. 747

& n.3); Wynnewood Refining, Comments on “Proposed RFS Small 

Refinery Exemption Decision” at 27 & n.147 (Feb. 7, 2022) (J.A. 

2692 & n.147).
32

it will be unable to pass through the full price of its RINs. 

Accord Calumet Shreveport Refin., 86 F.4th at 1141 (noting 

that refineries are at least sometimes “unable to purchase RINs 

ratably”). 

EPA acknowledged that RIN price quotes are unavailable 

on weekends but countered that such unavailability was not 

“fundamentally problematic for refineries wishing to acquire 

RINs ratably with their fuel production and sales.” April 

Denial at B-39 (J.A. 3082). EPA reasoned that the refineries 

“can buy a volume of RINs at Friday’s RIN price but at a 

volume that reflects Friday, Saturday, and Sunday’s sales 

volumes.” Id. (J.A. 3082). EPA believed that this solution was 

sufficient because “Friday’s RIN price information is the 

information that the market has when it finds the appropriate 

fuel pricing on Saturday and Sunday.” Id. (J.A. 3082). In other 

words, EPA assumed that weekend fuel prices would reflect 

Friday’s RIN prices. But EPA provided no studies or data to 

support that conclusion. Indeed, the chief study on which EPA 

relied in support of its RIN cost passthrough theory did not 

examine any data for weekends. See Christopher R. Knittel et 

al., The Pass-Through of RIN Prices to Wholesale and Retail 

Fuels under the Renewable Fuel Standard: Analysis of PostMarch 2015 Data at 15 (Nov. 23, 2016) (J.A. 14644) (noting 

that “[t]he data are for U.S. business days”). Thus, EPA’s 

determination that refineries can efficiently pass through RIN 

costs on weekends amounts to “sheer speculation.” Sorenson 

Commc’ns, Inc. v. FCC, 755 F.3d 702, 708 (D.C. Cir. 2014). 

In addition, EPA ignores the fact that small refineries may 

not have the necessary working capital to pre-purchase RINs to 

account not only for Friday’s fuel sales but also Saturday’s and 

Sunday’s. One of the core tenets of the RIN cost passthrough 

theory is that small refineries will never be economically 
33

burdened by the RFS program because they can use the 

proceeds from their fuel sales to purchase RINs. That principle 

does not work if the small refineries are expected to purchase 

RINs in advance of their corresponding fuel sales.

Third, EPA failed to support its assumption that RIN 

prices are immediately passed through to the refineries’ 

customers. See State Farm, 463 U.S. at 43 (noting that an 

agency acts arbitrarily and capriciously when it “offer[s] an 

explanation for its decision that runs counter to the evidence 

before the agency”). EPA relied on the Knittel study, which 

concluded that RIN prices generally are passed through from 

refineries to their customers. See Alon Refin. Krotz Springs, 

Inc., 936 F.3d at 649 (explaining the Knittel study’s findings 

that “RIN cost[s] generally [are] included in the sale prices of 

obligated fuels” (cleaned up)). That study did not find that the 

cost passthrough is immediate: It stated that “73% of a change 

in RIN price was passed through in the form of higher 

petroleum prices in the same day [and] 98% within two 

business days.” Id. (citing the Knittel study).

The evidence of a lag in price adjustment undercuts EPA’s 

assumption that a refinery can assure RIN cost passthrough by 

purchasing RINs ratably. If a refinery is unable to pass through 

the entire cost of its RINs when it makes its fuel sales, the 

refinery may suffer economic losses that could cause hardship. 

EPA’s failure to support the central premise of its economic 

theory renders the Denial Actions arbitrary and capricious. See 

Am. Fuel & Petrochemical Mfrs., 937 F.3d at 589.11

11 EPA suggests that “ratably” may mean only purchasing “on a 

systematic, regular basis” rather than “contemporaneously.” See

April Denial at 54 (J.A. 2998). This definition does not change our 
34

For each of the foregoing reasons, EPA’s Denial Actions 

are arbitrary and capricious.12

IV.

EPA denied two refineries’ hardship petitions for an 

independent reason: EPA concluded that, in addition to failing 

to demonstrate disproportionate economic hardship, neither 

refinery met threshold eligibility requirements to receive the 

small-refinery hardship exemption. See April Denial at 21-23

(J.A. 2965-67). The companies—Company A and Company 

B—challenge EPA’s ineligibility determination as contrary to 

law and arbitrary and capricious. Company A also contends 

that, even if the ineligibility criteria are lawful, EPA’s 

application of them to its refinery was impermissibly 

retroactive. 

Some context is helpful to understand these challenges. 

Between 2007 and 2014, EPA promulgated various regulations 

conclusion. EPA has not offered any coherent definition of what 

time frame constitutes “regular” purchasing, leaving us to “guess as 

to what” the agency intended to say, and that renders the Denial 

Actions arbitrary and capricious. See Checkosky v. SEC, 23 F.3d 

452, 491 (D.C. Cir. 1994). Further, EPA has not explained how 

regular, non-contemporaneous RIN purchases would ameliorate the 

problems with passing through RIN costs discussed above.

12 Petitioners have also argued that the Denial Actions were 

impermissibly retroactive because they reasonably relied on EPA’s 

prior approach to adjudicating hardship petitions. Because we 

conclude that EPA’s approach to adjudicating hardship petitions in 

the Denial Actions was contrary to law and arbitrary and capricious, 

we need not, and do not, address whether it was also impermissibly 

retroactive.
35

implementing the initial blanket exemption from the RFS

program and the later individualized extensions of that

exemption. In 2007 and 2010, EPA promulgated regulations 

under the initial blanket exemption. See Regulation of Fuels 

and Fuel Additives: Renewable Fuel Standard Program, 72 

Fed. Reg. 23,900 (May 1, 2007); Regulation of Fuels and Fuel 

Additives: Changes to Renewable Fuel Standard Program, 75 

Fed. Reg. 14,670 (Mar. 26, 2010). Under those regulations, a 

refinery would qualify for the blanket exemption if its average

crude oil throughput was below 75,000 barrels in either 2004 

or 2006. See 40 C.F.R. §§ 80.1101(g), 80.1141(b)(2)(i) (2007); 

40 C.F.R. §§ 80.1401, 80.1441(b)(1)(i) (2010). (EPA did not 

use 2005 data because “some refineries’ production may have 

been affected by Hurricanes Katrina and Rita.” See 72 Fed. 

Reg. at 23,925.) A refinery that failed to qualify based on its

2004 and 2006 production would not be eligible for the initial 

blanket exemption, even if its production fell below the 

threshold amount in later years. EPA also required that, to 

obtain the initial blanket exemption, a small refinery submit a 

“verification letter” containing information enabling EPA to 

confirm that the refinery qualified for the exemption. See 40 

C.F.R. § 80.1141(b)(2) (2007) (now codified at 

§ 80.1441(b)(1)). If EPA found “false or inaccurate 

information” in the verification letter, it would “void” the 

exemption. Id. § 80.1141(c). 

The regulations implementing the statutory provision for 

individual refineries to apply for extensions authorized a 

refiner to petition “at any time . . . for an extension of its small 

refinery exemption.” Id. § 80.1141(e)(1)(i) (2007) (now 

codified at § 80.1441(e)(2)). EPA decided in 2014 to measure 

refinery output based on the year for which the exemption is 

sought and the immediately preceding year. See Regulation of 

Fuels and Fuel Additives: RFS Pathways II, and Technical 
36

Amendments to the RFS Standards and E15 Misfueling 

Mitigation Requirements, 79 Fed. Reg. 42,128, 42,152 (July 

18, 2014) (codified at 40 C.F.R. § 80.1441(e)(2)(iii)). The 

output of a small refinery seeking an exemption for the year 

2020, for example, must be below the small-refinery threshold 

in both 2020 and 2019. 

Through 2016, EPA understood that, under the statute and 

its regulations, “only small refineries that previously had 

received the initial exemption . . . qualif[ied] for an extension 

of that exemption.” Petition for Review at 4-5, Dakota Prairie 

Refin., LLC v. EPA, No. 16-2692 (8th Cir. June 13, 2016) 

(attaching a copy of EPA’s denial of a refinery hardship 

petition on the ground that the refinery had not received the 

initial blanket exemption); see also RFA, 948 F.3d at 1247. 

Around 2017, however, the agency experimented with a

different approach. It started to grant hardship petitions, 

including Company A’s, even when the refinery “did not 

receive the initial, statutory small refinery exemption.” EPA, 

Grant of Request for Extension of Small Refinery Temporary 

Exemption under the Renewable Fuel Standard Program for 

[Company A’s refinery] at 1. In doing so, EPA recognized that 

it “[p]reviously . . . regarded as eligible for hardship relief only 

those refineries that received the initial statutory exemption.” 

Id. at 1 n.1. But it did not explain how a refinery that did not 

receive the initial exemption could receive an “extension” of 

that exemption. Instead, EPA defended its new approach on 

policy grounds, observing that it would allow a refinery “to 

seek hardship relief without regard to the refinery’s operations 

from over a decade ago.” Id. Under that approach, EPA 

initially granted Company A’s and Company B’s 2018 

hardship petitions. See EPA, Decision on 2018 Small Refinery 

Exemption Petitions (Aug. 9, 2019) (J.A. 3518-19) (“August 

2019 Decision”).
37

Those exemptions were quickly challenged in court. 

Representatives of the renewable fuels industry challenged 

some of the 2017 hardship exemptions in the Tenth Circuit in 

2018. See Petition for Review, Renewable Fuels Ass’n v. EPA, 

No. 18-9533 (10th Cir. May 29, 2018). And they challenged 

the 2018 exemptions, including Company A’s and Company 

B’s, in this court in 2019. See Petition for Review, Renewable 

Fuels Ass’n v. EPA, No. 19-1220 (D.C. Cir. Oct. 22, 2019). 

The Tenth Circuit acted first and faulted EPA for failing to heed 

the statute’s “extension” terminology. RFA, 948 F.3d at 1243-

49. It held that a small refinery could receive an extension of 

the exemption only if it had applied for and received an 

exemption for every preceding year of the RFS program. See 

id. at 1245. Otherwise, that court reasoned, there would be no 

exemption to “extend.” Id. 

The Supreme Court granted certiorari and charted a middle 

path in HollyFrontier, 594 U.S. 382. The Court rejected as 

unduly rigid the Tenth Circuit’s reading of the statute to require 

unbroken continuity, holding that “small refineries whose 

exemptions have lapsed in one year may still seek an 

‘extension’ in a following year.” Id. at 390. The Court 

embraced EPA’s pre-2017 position that hardship relief was 

available “only to small refineries in existence in 2008 and not 

to new ones” as sufficient to give meaning to the term 

“extension,” since only refineries that received the initial 

blanket exemption could petition for an “extension” of that 

exemption. Id. at 397; see also id. at 398 (explaining that there 

is nothing “odd about the fact that Congress chose only to 

protect existing small refineries rather than new entrants” since 

Congress often “chooses to protect existing market participants 

from shifts in the law while applying new restrictions fully to 

future entrants”). 
38

In light of the Supreme Court’s decision to review the 

Tenth Circuit’s continuity holding, our Circuit held the 

challenges to the 2018 exemptions in abeyance. See 

Renewable Fuels Ass’n v. EPA, No. 19-1220 (D.C. Cir. Feb. 

17, 2021), Doc. 1885774. After the Supreme Court issued its 

opinion in HollyFrontier, we granted EPA’s request for a 

voluntary remand of the exemptions. See Renewable Fuels 

Ass’n v. EPA, No. 19-1220 (D.C. Cir. Dec. 8, 2021), Doc. 

1925942. 

In the Denial Actions, EPA largely reverted to its original 

approach to eligibility consistent with its existing regulations 

and the HollyFrontier decision. See April Denial at 21-22 (J.A. 

2965-66). As relevant here, EPA clarified that, to receive an 

extension of the initial blanket exemption, a small refinery 

must have qualified for the initial blanket exemption based on 

its average throughput in either 2004 or 2006; it need not have 

continuously received extensions. Id. at 22 (J.A. 2966). EPA 

also reiterated the requirement that a small refinery must have 

sought and received the initial exemption, meaning it must 

have submitted a verification letter to EPA. Id. (J.A. 2966).

Applying that approach, EPA determined that neither

Company A nor Company B was eligible for an extension 

because, among other reasons, neither had submitted the 

requisite verification letter to EPA to claim the initial 

exemption. EPA accordingly concluded that neither was 

eligible to petition for an extension of that exemption. It 

therefore denied Company A’s and Company B’s remanded

2018 hardship petitions. See id. at 22-23 (J.A. 2966-67). And 

it denied the companies’ pending 2019 and 2020 petitions. See 

June Denial at 23-24 (J.A. 3144-45). 
39

The companies challenge EPA’s ineligibility 

determination on various grounds. None is persuasive.

First, the companies contend that EPA’s approach in the 

Denial Actions contradicts its regulations. In their view, 40 

C.F.R. § 80.1441(b)(1) does not “purport to condition the 

initial exemption on a verification letter.” Reply Br. 46. 

Rather, the companies suggest, any refinery meeting the 

statutory eligibility criteria automatically received the initial 

blanket exemption, regardless of whether it claimed it by 

submitting the verification letter. We disagree. From the 

outset, EPA regulations used the verification letter to confirm 

that a refinery qualified for and intended to use the exemption. 

That is why the regulations specified that, “[i]f EPA finds that 

a refiner provided false or inaccurate information regarding a 

refinery’s crude throughput . . . in its small refinery 

verification letter, the exemption will be void as of the effective 

date of these regulations.” 40 C.F.R. § 80.1141(c). If a small 

refinery can lose the initial exemption by filing a faulty 

verification letter, the exemption is not automatically applied.

EPA permissibly required qualifying refineries to claim the 

exemption by submission of the letter. 

Second, Company A argues that, if the regulations mean 

what EPA’s Denial Actions say they do—i.e., that to have 

received the initial blanket exemption, a small refinery must 

have submitted a verification letter—the regulations so 

interpreted are contrary to the statute and must be set aside. 

(Although Company B initially suggested the regulations 

should be set aside, it retreated from that argument in the reply 

brief.) In Company A’s view, a small refinery automatically 

qualified for the initial blanket exemption if its crude oil 

throughput was below 75,000 barrels per day on average in any 

year before 2011. It contends that, to the extent the regulations 
40

add the requirement of a verification letter attesting to the 

same, they are contrary to law. 

For starters, the verification-letter rule is not new. EPA 

promulgated it in 2007, raising the question whether Company 

A’s statutory challenge is timely. The CAA mandates that a 

challenge to EPA’s regulations be filed within 60 days of the 

date of the regulation’s promulgation, unless the challenge “is 

based solely on grounds arising after such sixtieth day,” in 

which case it must “be filed within sixty days after such 

grounds arise.” 42 U.S.C. § 7607(b)(1). The challenge 

concededly was not raised during the initial sixty-day window; 

Company A instead invoked the after-arising exception, which 

enables a party to rely on an intervening legal development to 

bring a claim that it “could not have raised” during the initial 

sixty-day window. Honeywell Int’l, Inc. v. EPA, 705 F.3d 470, 

473 (D.C. Cir. 2013); see also Sierra Club de Puerto Rico v. 

EPA, 815 F.3d 22, 26-28 (D.C. Cir. 2016). 

Here, Company A (or, technically, the previous owner of 

its relevant refinery) could have raised a timely challenge to the 

verification-letter requirement. If it thought its refinery

qualified as small, Company A would have had standing to 

challenge the regulations at that time, seeking to benefit from 

the exemption without submitting a verification letter. 

Assuming Company A could have brought an after-arising 

claim within sixty days of when its claim ripened (an issue on 

which we take no position), that was, at the latest, in 2008, 

when its average throughput first fell below 75,000 barrels. See

Company A, Comments on “Proposed RFS Small Refinery 

Exemption Decision” at 5 & n.25 (Feb. 7, 2022). 

Company A, however, chose not to bring a claim and 

instead complied with the renewable fuel requirements in 2008, 
41

2009, and 2010. Because the company would have had 

standing to challenge the verification-letter requirement as 

contrary to the Act within sixty days after first qualifying as a 

small refinery, it cannot now bring such a challenge. It is well 

established that “‘the mere application of a regulation,’ without 

anything more” is not after-arising grounds triggering the 

section 7607(b)(1) exception. Sierra Club de Puerto Rico, 815 

F.3d at 27 (quoting Am. Rd. & Transp. Builders Ass’n v. EPA, 

705 F.3d 453, 458 (D.C. Cir. 2013)). 

Company A contends that a timely challenge to the 

verification-letter requirement “would have been speculative” 

in 2008 because EPA had not yet spelled out that receipt of the 

initial blanket exemption was a prerequisite to later obtaining 

an individualized hardship exemption. Reply Br. 49 (quoting 

Sierra Club de Puerto Rico, 815 F.3d at 27). But Company A 

does not challenge EPA’s determination that a refinery seeking 

an extension must show that it received the initial exemption. 

Indeed, in light of the plain meaning of the statutory reference 

to “extension,” as acknowledged in HollyFrontier, any such 

challenge would be futile. Instead, Company A seeks to 

challenge the verification-letter requirement itself. And, as 

explained, Company A had every opportunity to bring that

challenge back in 2008. It therefore cannot do so now. 

Third, Company B argues that EPA’s reasoning is 

arbitrary and capricious because EPA failed to explain its 

change in policy. Company B points to the fact that, before the 

April Denial, EPA briefly granted Company B’s 2018 hardship 

petition. See August 2019 Decision (J.A. 3518-19). But EPA 

acknowledged that its approach in the April Denial was a 

change from the approach it took in granting an unusually high 

number of exemptions for 2018, including Company B’s. No 

more was needed. When it initially granted the 2018 
42

exemptions, EPA did not mention the RFS program’s express 

limitation of the hardship exemption to small refineries that had 

received—and so were in a position to seek an “extension”

of—the initial blanket exemption. See 42 U.S.C. 

§ 7545(o)(9)(B)(i). Nor had EPA grappled with that 

requirement when it changed its approach in 2017. In the April 

Denial, EPA acknowledged and reasonably explained that it 

withdrew individual exemptions granted to refineries that did 

not receive the blanket exemption, including Company B, in 

accordance with its longstanding (if briefly disregarded) 

regulation and to be “consistent with the Supreme Court’s 

holding in HollyFrontier.” April Denial at 21 (J.A. 2965). 

Under the circumstances, that explanation suffices. 

Company B also argues that EPA’s reasoning is arbitrary 

and capricious on its own terms. In support of the Company B 

denial, EPA cited the Supreme Court’s statement in

HollyFrontier that hardship relief is available only to those 

“small refineries in existence in 2008.” See id. at 22 & n.105

(J.A. 2966) (quoting 141 S. Ct. at 2181). Company B contends 

that reasoning does not apply to it because Company B was in 

existence in 2008. 

EPA reasonably explained, however, that although 

Company B existed in 2008, it was “in the same situation as a 

new [post-2008] refinery” ineligible for hardship relief. EPA, 

Company B - June 2022 Denial Action (June 3, 2022). That 

was because, before 2017, the company generated crude oil as 

a byproduct and sold it to a local refiner, and so the company 

did not incur renewable fuel obligations. It was only when that 

local refiner stopped purchasing Company B’s crude oil around 

2017—long after the RFS program was in place—that 

Company B began refining the crude oil on its own and 

incurring renewable fuel obligations under the RFS program. 
43

EPA explained that, before changing its operations in 2017 to 

refine its own crude oil, Company B, like a new refinery, “had 

the ability to consider whether [it] believe[d] the establishment 

of the RFS program and its requirements [would] cause 

economic hardship before beginning operations.” Id.

Company B objects that EPA’s analysis was nonetheless 

arbitrary and capricious because, unlike a new refinery that 

could “assess the markets” and the concomitant costs before 

entering them, Company B did not voluntarily enter the 

transportation fuel market; it did so “only as a last resort—to 

ensure that its byproducts were not waste that could harm the 

environment.” Pet. Br. 98. Even accounting for those 

considerations, EPA’s explanation as to why it deemed 

Company B ineligible was reasonable. If it was not profitable 

for Company B to start refining crude oil in 2017, it could have 

stayed out of the refining business. See Company B Denial. In 

that sense, then, the company did voluntarily opt into the RFS 

program like a new refinery. 

Finally, Company A argues that, even if EPA’s 

ineligibility determination were permissible, the agency should 

not have applied it “retroactively” after the years from which 

Company A sought compliance relief had passed. EPA 

announced its intention to deny the hardship petitions in

December 2021—after the end of the compliance years at issue 

for Company A’s refinery (2018, 2019, and 2020). See EPA, 

Proposed RFS Small Refinery Exemption Decision (December 

2021) (J.A. 224). If it had known the refinery was ineligible 

for an exemption, Company A asserts, it could have “adjust[ed] 

[its] compliance strateg[y] []or ma[de] [an] informed decision[] 

about how much crude oil to process in those years.” Reply 

Br. 40. Therefore, the company concludes, EPA should have 

withheld the effect of the denials by, for example, extending 
44

the Alternative Compliance Actions to cover not only 2018 but 

also 2019 and 2020.13 

We disagree. “The general principle is that when as an 

incident of its adjudicatory function an agency interprets a 

statute, it may apply that new interpretation in the proceeding 

before it.” Clark-Cowlitz Joint Operating Agency v. FERC, 

826 F.2d 1074, 1081 (D.C. Cir. 1987) (en banc). There is an 

exception for cases in which applying a new rule to preexisting 

conduct would “work a ‘manifest injustice.’” Id. (quoting 

Thorpe v. Housing Auth. of City of Durham, 393 U.S. 268, 282 

(1969)). We have employed various tests to evaluate whether 

the application of a new agency rule to parties to an 

administrative adjudication will work a manifest injustice. See 

United Food & Com. Workers Int’l Union, AFL-CIO, Local 

150-A v. NLRB, 1 F.3d 24, 34-35 (D.C. Cir. 1993) (reviewing 

the tests). “Although our multi-factor tests have been stated in 

terms of a balancing of co-equal factors, each includes one that, 

in practice, has been given primary importance; namely, the 

critical question of whether the challenged decision ‘creates a 

new rule, either by overruling past precedents relied upon by 

the parties or because it was an issue of first impression.’” Id.

at 34 (quoting District Lodge 64 v. NLRB, 949 F.2d 441, 447 

(D.C. Cir. 1991)). Characterizing the Denial Actions as 

imposing a new eligibility rule, Company A argues that EPA 

13 As explained, supra n.12, we do not reach the challenges to the 

retroactive application of EPA’s approach to adjudicating hardship 

petitions because we hold that approach is contrary to law and 

arbitrary and capricious. By contrast, since we hold that EPA’s 

eligibility approach is lawful, we must consider Company A’s 

argument that it must not be applied retroactively. 
45

should have “withheld” the economic consequences of those 

Actions by granting additional compliance relief. 

Company A’s argument fails because, for purposes of 

applying a new ruling to prior conduct, not all precedent is 

created equal. The mere fact that an agency “modif[ies] 

existing law” is not enough to justify withholding its new 

ruling’s effect on parties to the agency adjudication. See 

District Lodge 64, 949 F.2d at 447. The overruled precedent

must have been “clear [and] consistent” during the period of 

the alleged reliance. Id. If it did not “rise to the level of a well 

established practice,” then reliance on that precedent is likely 

unreasonable. Clark-Cowlitz, 826 F.2d at 1083 (internal 

quotation marks omitted). For, in the end, our approach

“focuses on the reliance of the parties before the tribunal.” 

Sanitary Truck Drivers & Helpers Loc. 350 v. NLRB, 45 F.4th 

38, 45 (D.C. Cir. 2022). 

Here, EPA’s approach to eligibility was not “settled” 

during the period of Company A’s asserted reliance. See Am. 

Tel. & Tel. Co. v. FCC, 454 F.3d 329, 332 (D.C. Cir. 2006). 

As mentioned, “[t]hrough at least the first quarter of 2016, the 

EPA itself limited ‘extensions’ to only those small refineries 

that qualified for the original blanket exemption.” RFA, 948 

F.3d at 1247. For example, EPA denied a hardship petition in 

2016 on the ground that the petitioning refinery did not exist in 

2006 and therefore “could not have received the initial blanket 

exemption.” See April Denial at 20 (J.A. 2964). In 2017, EPA 

granted some extensions to refineries that had not qualified for 

the original exemption before reasserting the receipt-of-initialexemption requirement in 2022. See id. (J.A. 2964). That 

history confirms that EPA’s approach in the Denial Actions “is 

not the sort of radical transformation whose retroactive 
46

application is likely to be unfair.” District Lodge 64, 949 F.2d 

at 448.

EPA’s decision to apply the Denial Actions’ eligibility 

approach to Company A is further supported by the strength of 

EPA’s reasons in support of that approach. “[A]dministrative 

agencies have greater discretion to impose their rulings 

retroactively when they do so in response to judicial review, 

that is, when the purpose of retroactive application is to rectify 

legal mistakes identified by a federal court.” Verizon, 269 F.3d 

at 1111. That is the case here. The renewable fuel producers’ 

challenge in the Tenth Circuit culminated in the Supreme 

Court’s acknowledgment that the RFS program forecloses

hardship relief for small refineries that did not receive the 

initial blanket exemption. HollyFrontier, 141 S. Ct. at 2181. 

Thus, as EPA recognized, the eligibility approach articulated 

in the Denial Actions comported with its own rules and was 

“consistent with the Supreme Court’s holding in 

HollyFrontier.” April Denial at 21 (J.A. 2965). Because the 

Denial Actions’ updated eligibility requirement was adopted to 

align the RFS program with the statutory text and clear 

implications of the Supreme Court’s ruling in HollyFrontier, 

EPA’s decision to apply that approach retroactively was 

reasonable. 
47

* * *

In sum, we conclude that EPA’s denials of Company A’s 

and Company B’s hardship petitions were lawful and 

reasonable. We therefore deny their petitions for review. 

V.

Finally, we turn to the three petitions challenging the 

Alternative Compliance Actions, consolidated under No. 22-

1074. The Compliance Actions apply to the 31 small refineries 

that initially received small refinery exemptions for 2016, 

2017, or 2018 but whose exemptions were vacated and later 

denied in the Denial Actions. The Compliance Actions allow 

these refineries to satisfy their RIN obligations “without 

retiring any additional RINs.” April Compliance Action at 1 

(J.A. (22-1074) 4); June Compliance Action at 2 (J.A. (22-

1074) 362). The first petition, from Growth Energy, challenges 

EPA’s authority to issue the Compliance Actions. The other 

two petitions, from small refineries seeking hardship 

exemptions, argue that the April Compliance Action did not 

extend relief far enough with respect to their 2018 RIN 

obligations.

14

A.

We first address Growth Energy’s petition. Growth 

Energy is an association of renewable fuels producers that 

primarily produce conventional ethanol. Growth Energy 

challenges EPA’s legal authority to issue the Alternative 

Compliance Actions. Explaining that Congress created several 

specific mechanisms for waiving RFS obligations, Growth 

14 The refineries do not challenge the June Compliance Action. 
48

Energy argues that this scheme precludes EPA from relieving 

refineries from their RFS obligations through other regulatory 

actions. See 42 U.S.C. § 7545(o)(7)(A) (general waiver); id.

§ 7545(o)(7)(D) (cellulosic waiver); id. § 7545(o)(9) (small 

refinery hardship exemption). Growth Energy maintains that, 

when no statutory waiver or exemption applies, the CAA 

requires EPA to “ensure[]” the renewable fuel volume 

requirements are met. Id. § 7545(o)(3)(B)(i). 

We do not reach the merits of this petition, however, 

because Growth Energy has failed to meet its burden of 

establishing standing. 

1.

To establish associational standing, an organization must 

show that “(1) ‘its members would otherwise have standing to 

sue in their own right;’ (2) ‘the interests it seeks to protect are 

germane to the organization’s purpose;’ and (3) ‘neither the 

claim asserted nor the relief requested requires the participation 

of individual members in the lawsuit.’” Ctr. for Sustainable 

Econ. v. Jewell, 779 F.3d 588, 596 (D.C. Cir. 2015) (quoting

Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 

(1977)); see also Sierra Club v. EPA, 754 F.3d 995, 999 (D.C. 

Cir. 2014). Members have standing to sue in their own right if 

they can “show (i) that [they] suffered an injury in fact that is 

concrete, particularized, and actual or imminent; (ii) that the 

injury was likely caused by the defendant; and (iii) that the 

injury would likely be redressed by judicial relief.” 

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021). 

The petitioner bears the burden of establishing standing. 

Chamber of Commerce v. EPA, 642 F.3d 192, 200 (D.C. Cir. 

2011).
49

Because Growth Energy is not the object of the challenged 

Alternative Compliance Actions, standing is “substantially 

more difficult” to establish. See Lujan v. Defs. of Wildlife, 504 

U.S. 555, 562 (1992) (quoting, inter alia, Warth v. Seldin, 422 

U.S. 490, 505 (1975)). A court cannot redress an injury “that 

results from the independent action of some third party not 

before the court.” Simon v. E. Ky. Welfare Rights Org., 426 

U.S. 26, 41-42 (1976). A petitioner must provide reason to 

believe a government regulation will “significantly affect[]” 

the decisions of the third party. Branton v. FCC, 993 F.2d 906, 

912 (D.C. Cir. 1993). “Speculative and unsupported 

assumptions regarding the future actions of third-party market 

participants are insufficient.” Crete Carrier Corp. v. EPA, 363 

F.3d 490, 494 (D.C. Cir. 2004). “[T]he petitioners carry the 

burden of adducing facts showing that those third-party choices 

have been or will be made in such manner as to produce 

causation and permit redressability of injury.” Chamber of 

Commerce, 642 F.3d at 201 (cleaned up). Growth Energy may 

meet its burden by “citing any record evidence relevant to its 

claim of standing and, if necessary, appending to its filing 

additional affidavits or other evidence sufficient to support its 

claim.” Ohio v. EPA, 98 F.4th 288, 300 (D.C. Cir. 2024)

(cleaned up). 

2.

Growth Energy’s theory of standing turns on the 

relationship between RFS obligations and the demand for 

renewable fuels from refineries regulated by the RFS program. 

In its opening brief, Growth Energy states that the Compliance 

Actions reduce the net demand for its members’ products and 

that the “destruction of demand” constitutes an injury in fact. 

Growth Energy Br. 15. To support its standing, Growth Energy 

submits a single declaration from its CEO that lists the 
50

organization’s members and their share of the renewable fuels 

market. The CEO avers that three-quarters of the renewable 

fuel used for RFS compliance is ethanol, and Growth Energy’s 

members produce 57 percent of all ethanol. Moreover, the 

CEO asserts that the Compliance Actions will “substantially 

reduce the future demand for Growth Energy’s members’ 

renewable-fuel products” by reducing the renewable fuel 

obligations for 31 small refineries. Decl. of Emily Skor at 4. 

Even when replying to Intervenors’ challenge to standing, 

Growth Energy offers no additional analysis and attaches only 

another declaration from its CEO simply reiterating that the 

Compliance Actions will reduce demand and harm its 

members. Cf. Sierra Club v. EPA, 292 F.3d 895, 900 (D.C. 

Cir. 2002) (explaining that affidavits in support of standing 

generally should be made in “the petitioner’s opening brief—

and not . . . in reply to the brief of the respondent agency”).

Such sparse and conclusory claims about competitive 

injuries are insufficient to establish standing. See Ohio, 98 

F.4th at 303 (holding plaintiffs failed to “cite any record 

evidence or to file additional affidavits or other evidence 

sufficient to support” their standing (cleaned up)). Growth 

Energy relies on the market share of its members, but market 

share alone does not demonstrate that EPA’s Compliance 

Actions will cause these ethanol producers (or any others) a 

present or future economic injury. While Growth Energy has 

alleged that some future reduction in demand for renewable 

fuels is possible, nothing in the briefing or record suggests that 

a reduction in overall market demand is “certainly impending”

as a result of the Compliance Actions. Clapper v. Amnesty Int’l 

USA, 568 U.S. 398, 402 (2013).

The dynamics of the RIN market are not so clear that we 

can assume without further information or analysis that 
51

waiving some RIN obligations for 2018 will reduce 2024 

demand for Growth Energy’s members’ renewable fuels. The 

Compliance Actions here cover only 31 small refineries, and 

Growth Energy has offered no evidence about how a waiver of 

RFS obligations for those refineries will change the overall 

market demand for renewable fuels.15 That market includes 

many actors beyond the 31 small refineries. 

Growth Energy also maintains that courts have “routinely” 

found Growth Energy had standing in other cases challenging 

EPA actions, which, it implies, supports standing here. But 

Growth Energy’s past demonstration of standing to challenge 

different EPA actions does not diminish its burden to establish 

standing in this case. Cf. TransUnion, 141 S. Ct. at 2208 

(“[S]tanding is not dispensed in gross; rather, plaintiffs must 

demonstrate standing for each claim that they press.”).

Moreover, the previous cases Growth Energy cites for this 

proposition do not opine on Growth Energy’s standing. But 

they resolve other parties’ standing based on more detailed 

evidence than Growth Energy has provided here. For example, 

in Growth Energy, environmental petitioners challenged an 

EPA rule increasing the annual fuel target for biofuels. 5 F.4th

at 28. Relying on a report and declaration explaining how

increasing the volume of required biofuels would increase 

demand for the feedstocks that create those biofuels, we held 

that environmental petitioners would experience injury. Id.; 

see also Nat’l Biodiesel Bd. v. EPA, 843 F.3d 1010, 1015 (D.C. 

15 By contrast, the Tenth Circuit found a similar biofuels coalition

had standing to challenge EPA’s grant of a hardship exemption when

the coalition included an affidavit from an economist who modeled 

how the actual demand for renewable fuels would be affected by RFS 

exemptions. RFA, 948 F.3d at 1232-33 (10th Cir. 2020), vacated, 

No. 18-9533, 2021 WL 8269239 (10th Cir. July 27, 2021).
52

Cir. 2016) (holding that “economic actors suffer constitutional 

injury in fact when agencies . . . allow increased competition” 

(cleaned up)). In contrast to those earlier cases, Growth Energy 

submitted no evidence whatsoever about how vacating these

Compliance Actions would affect the overall demand for 

renewable fuels.

With respect to Article III standing, past performance is no 

guarantee of future results. Growth Energy failed to establish 

its members have standing to challenge the Alternative 

Compliance Actions. Accordingly, we dismiss Growth 

Energy’s petition for review. 

B.

Next, we turn to the two small refineries’ challenges. 

Sinclair Wyoming Refining Company (“Sinclair”) and 

Wynnewood Refining Company (“Wynnewood”), along with 

34 other small refineries, applied for hardship exemptions in 

2018. In March 2019, while waiting for EPA to decide their 

petitions, both Wynnewood and Sinclair retired RINs to satisfy 

their 2018 RFS obligations. 

In August 2019, applying its longstanding approach of 

granting exemption petitions based on the DOE matrix, EPA 

granted 31 of the 2018 hardship petitions, including 

Wynnewood’s. See August 2019 Decision (J.A. 3518-19).

EPA contemporaneously returned the RINs of the refineries for 

which it granted exemptions. 

EPA denied the remaining five petitions, including 

Sinclair’s, based on the DOE matrix. Id. (J.A. 3518-19). In 

Sinclair’s view, its denial resulted from a clerical error: EPA 

failed to convey a necessary document to DOE, which resulted 
53

in a lower DOE matrix score. In January 2021, EPA reversed 

its decision and granted Sinclair’s 2018 small refinery 

exemption. EPA, Decision on the Small Refinery Exemption 

Petitions from the Sinclair Wyoming Refinery for 2018 and 

2019 and the Sinclair Casper Refinery for 2019 (2021) (J.A.

(22-1074) 630-32, 782). It did not, however, return the RINs 

Sinclair had already retired for the 2018 compliance year.

Not satisfied with EPA’s actions, both refineries sought 

redress, first with EPA and then in petitions for review. 

Wynnewood requested EPA reissue its RINs, rather than 

merely returning them, to remedy the value the RINs lost while 

awaiting EPA’s delayed decision on its hardship petition. 

Letter from Wynnewood to EPA, Re: Petition for Hardship 

Relief Under EPA’s Renewable Fuel Standard at 2 (Sept. 20, 

2019) (J.A. (22-1074) 670). Some of Wynnewood’s RINs had 

been 2017 carryovers, so they had expired by the time EPA 

returned them. The remaining RINs—from 2018—had 

depreciated in value since Wynnewood retired them. When 

EPA declined, Wynnewood petitioned for review in the Tenth 

Circuit.16 Sinclair requested EPA return the RINs it had retired 

before receiving its exemption. When EPA declined, Sinclair 

petitioned the Tenth Circuit for review.

While Wynnewood’s and Sinclair’s cases were pending, 

the Supreme Court decided HollyFrontier, 594 U.S. 382. In 

response, EPA moved—unopposed—to remand both 

refineries’ pending cases. We remanded Wynnewood’s case 

for EPA to reassess along with the rest of the 2018 petitions 

affected by HollyFrontier. The Tenth Circuit vacated and 

16 The case was transferred to this circuit by consent of both 

parties after we granted a motion to consolidate Wynnewood’s case 

with Sinclair’s case challenging the 2018 denials.
54

remanded Sinclair’s exemption. Thus, at the time of the 2022 

Denial Actions, Wynnewood’s exemption had been remanded 

but not vacated, and Sinclair’s exemption had been vacated and 

remanded. That brings us to the present action. 

EPA denied both Sinclair’s and Wynnewood’s 2018 

hardship petitions in the April Denial. To mitigate the hardship 

of revoking previously granted exemptions, EPA issued the 

April Compliance Action. The Compliance Action authorized 

Wynnewood to show compliance through alternative methods, 

but it was silent on Wynnewood’s request for RIN reissuance.

The Compliance Action explicitly excluded Sinclair, along 

with the four other refineries whose hardship petitions EPA 

initially denied, from all alternative relief, effectively denying 

Sinclair’s petition for alternative compliance and RIN 

reissuance. April Compliance Action at 1 n.5 (J.A. (22-1074) 

4 n.5).

Both refineries petitioned for review of the April

Compliance Action. 

1.

Sinclair argues EPA’s April Compliance Action was 

arbitrary and capricious because EPA excluded Sinclair 

without explaining why it was treated differently from 

similarly situated refineries. It is “black letter administrative 

law” that “like cases must receive like treatment.” Baltimore 

Gas & Elec. Co. v. FERC, 954 F.3d 279, 286 (D.C. Cir. 2020) 

(cleaned up). Sinclair argues EPA failed to provide an 

adequate explanation for treating Sinclair differently because 

EPA simply noted in a conclusory footnote that five refineries 

were excluded from the alternative compliance relief and made 

no specific mention of Sinclair. Sinclair also argues it is 
55

fundamentally the same as the 31 refineries that received relief, 

so the reason EPA gave for treating it differently is flawed. 

We disagree.

While EPA certainly could have provided more detail, we 

conclude that the agency adequately explained its exclusion of 

Sinclair from the April Compliance Action. EPA set forth that 

its purpose in issuing the Compliance Action was to address 

the “virtually insurmountable obstacles” to small refineries 

whose hardship exemptions EPA had initially granted and that 

now needed to purchase RINs to meet their newly reimposed 

2018 obligations. April Compliance Action at 1 (J.A. (22-

1074) 4). EPA detailed its concern about the practical effects 

of asking previously exempted refineries to resubmit RINs. Id.

at 10-14 (J.A. (22-1074) 13-17). It concluded that “because of 

the passage of time between when [the refineries] received 

their original [exemption] grants and the [April] Denial, they 

either no longer hold the RINs they once acquired to 

demonstrate compliance or they do not hold RINs in sufficient 

amounts to meet their combined RFS obligations.” Id. at 7

(J.A. (22-1074) 10). EPA also explained its concern about “the 

impacts . . . on the RFS program as a whole” that a sudden 

increase in demand for RINs would cause. Id. at 9 (J.A. (22-

1074) 12).

Relying on this reasoning, EPA explained it was excluding 

refineries whose hardship petitions it originally denied (in 

August 2019) because they neither faced challenges in meeting 

new obligations nor contributed to an increase in new demand 

for RINs. Id. at 1 n.5 (J.A. (22-1074) 4 n.5). Sinclair is one of 

those refineries. Its hardship petition was initially denied, it 

retired its RINs, and EPA never returned them. We recognize 

that EPA later granted Sinclair a small refinery exemption in 

January 2021, but Sinclair’s RINs were never returned, and the 
56

Tenth Circuit vacated Sinclair’s exemption after 

HollyFrontier. At the time of the Denial Action, therefore, 

Sinclair no longer had an exemption. 

It was not unreasonable for EPA to conclude that Sinclair 

is not similarly situated to the 31 small refineries whose 

exemptions were granted in August 2019 and their RINs 

returned. After the April Denial, those refineries would have 

been obliged to purchase and submit new RINs. By contrast, 

Sinclair’s RINs were never returned, and so after the April 

Denial, it was not obliged to purchase or submit RINs. EPA’s 

explanation of its discretionary relief was sufficient. EPA 

made clear the criteria for inclusion in the April Compliance 

Action, and Sinclair did not meet them. On its own terms, the 

Compliance Action was not arbitrary and capricious.17

Sinclair also argues there is no real difference between 

Sinclair and a refinery that initially received the 2018 

exemption because Sinclair should have received that

exemption. The only reason EPA denied its initial petition, 

Sinclair argues, was that EPA failed to transmit a document to 

DOE. If EPA had properly handled the paperwork, Sinclair 

would have received an exemption. Thus, Sinclair argues, it 

was essentially the same as the other refineries.

EPA contests whether Sinclair would have received a 2018 

exemption even without the error. But we need not decide 

whether Sinclair should have received the initial exemption. 

EPA reasonably distinguished refineries based on whether they 

received an exemption, not whether they should have received

17 Because Growth Energy failed to demonstrate standing, we do 

not reach the question of whether the Compliance Action was within 

EPA’s authority under the CAA. 
57

an exemption. The difference matters. EPA returned RINs to 

those refineries that received the August 2019 exemption. 

Requiring them to resubmit RINs now poses the harms to the 

RIN market that EPA described at length in the April

Compliance Action. By contrast, refineries that did not receive 

the exemption, regardless of eligibility, did not have their RINs 

returned. This is the case for Sinclair. Even when Sinclair 

received a belated exemption in January 2021, EPA did not 

return Sinclair’s RINs. 

Although Sinclair’s small refinery exemption petition took 

an unusual path, the bottom line is that Sinclair retired RINs, 

EPA never returned them, and on remand Sinclair’s exemption 

had been vacated. EPA reasonably concluded that Sinclair 

differed from the 31 refineries that received relief in the April

Compliance Action. Accordingly, we deny Sinclair’s petition 

for review.18

2.

While Sinclair was entirely excluded from the April 

Compliance Action, Wynnewood received compliance relief. 

Its claim is thus narrower than Sinclair’s: Wynnewood argues 

the April Compliance Action was arbitrary and capricious 

because EPA did not reissue Wynnewood’s RINs in the 

Compliance Action. We do not reach the merits of this claim, 

18 Sinclair’s other arguments are similarly unavailing. First, 

Sinclair argues EPA ignored an important aspect of the problem 

when explaining why Sinclair was not entitled to relief under the 

April Compliance Action. For the reasons above, we conclude 

EPA’s explanation was sufficient. Second, Sinclair argues we should 

instruct EPA not only to return its RINs but also to reissue them. 

We need not reach this issue, however, because EPA did not err in 

denying Sinclair alternative compliance relief.
58

however, because EPA did not deny Wynnewood’s request for 

RIN reissuance in the April Compliance Action—rather, EPA 

was silent on Wynnewood’s request.

The Administrative Procedure Act instructs courts to “hold 

unlawful and set aside agency action, findings, and 

conclusions” that are “arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law.” 5 U.S.C. 

§ 706(2). The problem for Wynnewood is that there has been 

no agency action, finding, or conclusion on Wynnewood’s 

request for RIN reissuance. EPA did not rule on Wynnewood’s 

request for RIN reissuance in the Compliance Action, which is 

silent on the matter. As explained above, the Compliance 

Action was tailored to remedy the effects of asking previously 

exempted refineries to resubmit RINs for years long since 

passed. By contrast, reissuing RINs is about the value of the 

RINs, not their availability. That type of relief was simply not 

addressed in the Compliance Action. Nor does Wynnewood 

point to any other action taken by EPA that addressed the RIN 

reissuance request.

Because the Compliance Action does not resolve 

Wynnewood’s request for RIN reissuance, we cannot review 

the Compliance Action for its treatment of Wynnewood’s 

claim. Accordingly, we dismiss Wynnewood’s petition for 

review.19

19 We note that nothing in this decision forecloses Wynnewood’s 

ability to seek review down the road. Wynnewood may again request 

EPA to reissue its RINs, as it did when EPA first returned the RINs 

in 2019. If EPA denies that request, Wynnewood could petition for 

review of that action. If EPA fails to act, Wynnewood could petition 

the court to compel a response. 
59

* * *

In sum, with respect to the petitions in No. 22-1074, we 

dismiss Growth Energy’s petition for lack of standing; we deny 

Sinclair’s petition because EPA’s decision was adequately 

explained; and we dismiss Wynnewood’s petition because 

there was no agency action with respect to its claim. 

VI.

For the foregoing reasons, we deny the petitions of 

Company A and Company B but otherwise grant the petitions

for review in No. 22-1073, vacate the Denial Actions, and 

remand to EPA for further proceedings. In No. 22-1074, we 

dismiss Growth Energy’s and Wynnewood’s petitions and 

deny Sinclair’s petition.

So ordered.