United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 5, 2018 Decided August 30, 2019

No. 16-1052

ALON REFINING KROTZ SPRINGS, INC.,

PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

MONROE ENERGY, LLC, ET AL.,

INTERVENORS

Consolidated with 16-1055, 17-1255, 17-1259, 18-1021, 

18-1024, 18-1025, 18-1029

On Petitions for Review of Agency Action of the 

United States Environmental Protection Agency

Samara L. Kline argued the cause for petitioners. With her 

on the briefs were Evan A. Young, Megan H. Berge, Lisa M. 

Jaeger, Brittany M. Pemberton, Clara Poffenberger, Richard 

S. Moskowitz, Robert J. Meyers, Thomas A. Lorenzen, 

Elizabeth B. Dawson, Warren R. Neufeld, LeAnn M. Johnson, 

and Jonathan G. Hardin. Albert M. Ferlo Jr. and Krista 

Hughes entered appearances. 
2

Meghan E. Greenfield, Trial Attorney, U.S. Department of 

Justice, argued the cause for respondent. With her on the brief 

was Jeffrey H. Wood, Acting Assistant Attorney General. 

Daniel R. Dertke, Attorney, entered an appearance.

Robert A. Long Jr. argued the cause for intervenors 

American Petroleum Institute and Growth Energy. With him 

on the brief were Kevin King, Seth P. Waxman, David M. Lehn, 

Saurabh Sanghvi, and Claire Chung. Stacy R. Linden entered 

an appearance. 

Shannen W. Coffin and Linda C. Bailey were on the brief 

for amici curiae NACS, et al. in support of respondent EPA.
3

No. 17-1044

COFFEYVILLE RESOURCES REFINING & MARKETING, LLC AND 

WYNNEWOOD REFINING COMPANY, LLC,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

ALON REFINING KROTZ SPRINGS, INC., ET AL.,

INTERVENORS

Consolidated with 17-1045, 17-1047, 17-1049, 17-1051, 

17-1052

On Petitions for Review of Action of the

United States Environmental Protection Agency

Brian Killian argued the cause for petitioner The National 

Biodiesel Board. With him on the briefs was Douglas A. 

Hastings.

Samara L. Kline and Thomas Allen Lorenzen, argued the 

causes for Obligated Party Petitioners. With them on the briefs 

were Evan A. Young, Lisa M. Jaeger, Brittany M. Pemberton, 

Clara Poffenberger, Richard S. Moskowtiz, Robert J. Meyers, 

Elizabeth B. Dawson, David W. DeBruin, Thomas J. Perrelli, 

Matthew E. Price, LeAnn M. Johnson, and Jonathan G. 
4

Hardin. David Y. Chung, Eric D. Miller, and Albert M. Ferlo 

Jr. entered appearances.

Patrick R. Jacobi and Samara M. Spence, Attorneys, U.S. 

Department of Justice, argued the causes for respondent. With 

them on the brief was Jeffrey H. Wood, Acting Assistant 

Attorney General. 

Thomas Allen Lorenzen argued the cause for intervenors 

American Fuel & Petrochemical Manufacturers and American 

Petroleum Institute in support of respondent regarding 

Biomass-Based Diesel Issues. With him on the brief were 

Robert J. Meyers, Elizabeth B. Dawson, Richard S. Moskowitz, 

Robert A. Long, Jr., and Kevin King. Stacy R. Linden entered 

an appearance.

Robert A. Long, Jr., Kevin King, Bryan M. Killian, 

Douglas A. Hastings, Seth P. Waxman, David M. Lehn, 

Saurabh Sanghvi, and Claire H. Chung were on the brief for 

intervenors Growth Energy, et al. in support of respondent. 

Eric D. Miller entered an appearance.

Before: PILLARD and KATSAS, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

Opinion concurring in part and concurring in the judgment

filed by Senior Circuit Judge WILLIAMS.

TABLE OF CONTENTS

I. Introduction..................................................................... 6

II. Background..................................................................... 7
5

A. Legal Background........................................................ 7

B. Procedural Background ............................................. 12

1. 2007, 2010, and 2017 Point of Obligation 

Proceedings............................................................ 12

2. 2017 Annual Volumetric Proceedings................... 15

III. Standard of Review.................................................... 17

IV. 2010 Point of Obligation Rule ................................... 17

A. Jurisdiction................................................................. 17

1. Final Agency Action Under Section 7607(b)(1).... 19

2. After-Arising Grounds Under Section 

7607(b)(1).............................................................. 28

3. Mandatory Reconsideration Under Section 

7607(d)(7)(B)......................................................... 29

B. Merits of Challenges to EPA’s Refusal to Revise 

the 2010 Point of Obligation Rule............................. 32

V. 2017 Annual Volumetric Rule...................................... 41

A. Point of Obligation .................................................... 42

1. Jurisdiction............................................................. 42

2. Merits..................................................................... 43

B. Cellulosic Biofuel Projection..................................... 53

C. Cellulosic Waiver ...................................................... 58

VI. 2018 Volume for Biomass-Based Diesel................... 62

A. NBB’s Standing......................................................... 63

B. Merits of NBB’s Challenges...................................... 65

VII. Conclusion ................................................................. 70
6

PER CURIAM:

I. Introduction

The Clean Air Act requires EPA to publish “renewable 

fuel standards,” ultimately expressed as “applicable 

percentages,” each year to ensure that the total supply of 

transportation fuel sold or imported into the United States 

contains specified proportions of each of four categories of 

renewable fuels. Congress intended the Renewable Fuel 

Standards (RFS) program to “move the United States toward 

greater energy independence and security” and “increase the 

production of clean renewable fuels.” See Energy 

Independence and Security Act of 2007 (EISA), Pub. L. No. 

110-140, preamble, 121 Stat. 1492 (2007) (codified at 42 

U.S.C. § 7545(o)). 

In these related cases, Alon Refining Krotz Springs, 

together with other petroleum refineries and their trade 

associations—the “Alon Petitioners”—seek review of EPA’s 

decision not to revise its 2010 point of obligation regulation 

requiring refineries and importers, but not blenders, to bear the 

direct compliance obligation of ensuring that transportation 

fuels sold or introduced into the U.S. market include the 

requisite percentages of renewables. Coffeyville Resources 

Refining & Marketing and another group of refineries and trade 

associations—the “Coffeyville Petitioners”—challenge EPA’s 

refusal to reassess the appropriateness of the point of obligation 

in the context of its 2017 annual volumetric rule, which set the 

2017 applicable percentages for all four categories of 

renewable fuel and the 2018 applicable volume for one subset 

of such fuel, biomass-based diesel. See 81 Fed. Reg. 89,746 

(Dec. 12, 2016) (2017 Rule). The Coffeyville Petitioners also

contend that EPA arbitrarily set the 2017 percentage standards 
7

too high. The National Biodiesel Board (NBB)—a biomassbased diesel industry trade association—separately contends

that EPA set the 2018 applicable volume for biomass-based 

diesel too low. Various trade associations representing 

refineries and producers of renewable fuels have intervened in 

support of EPA. For the reasons that follow, we deny each of 

the petitions for review, many of which recycle arguments 

raised and rejected in prior challenges.

II. Background

A. Legal Background

Congress established the RFS program in 2005 as part of 

the Energy Policy Act, Pub. L. No. 109-58, 119 Stat. 594 

(2005) (as amended at 42 U.S.C. § 7545(o)). The statute 

mandates the gradual introduction of four nested categories of 

renewable fuels into the United States’ supply of gasoline, 

diesel, and other transportation fuels. See 42 U.S.C. 

§ 7545(o)(2)(B). These categories include: (1) total renewable 

fuel; (2) advanced biofuel; (3) cellulosic biofuel; and (4) 

biomass-based diesel. Id. § 7545(o)(2)(A)(i), (B). The 

umbrella category, total renewable fuel, covers the three other 

categories plus any conventional renewable fuels, such as cornbased ethanol. See id. § 7545(o)(1)(F), (J), (2)(A)(i). The 

advanced biofuel subset includes any renewable fuel (except 

ethanol from cornstarch) that has at least 50% lower lifecycle 

greenhouse gas emissions than fossil fuels. Id.

§ 7545(o)(1)(B). The statute further specifies two 

nonexclusive subsets of advanced biofuels: cellulosic biofuel 

(a renewable fuel derived from cellulose materials such as corn 

stalks and husks) and biomass-based diesel (a diesel fuel 

substitute made from feedstocks such as animal fats). Id.

§ 7545(o)(1)(B), (D), (E); EPA Coffeyville Br. 4–5. The 
8

following figure depicts the nested nature of the four fuel 

categories.

Source: Coffeyville Br. 11.

Four tables in the statute set forth gradually increasing 

annual “applicable volume” requirements for each category of 

renewable fuel. See 42 U.S.C. § 7545(o)(2)(B)(i). The statute 

sets applicable volumes for biomass-based diesel through 

2012, id. § 7545(o)(2)(B)(i)(IV), and applicable volumes for 

the other three categories through 2022, id. 

§ 7545(o)(2)(B)(i)(I)–(III). Under those tables, as the total 

quantities of renewable fuel rise over time, the ratio of 

advanced biofuels relative to conventional renewable fuel 

gradually increases. Id. For compliance years (which match 

calendar years) after those specified in the tables, the statute 

requires EPA, in coordination with the Secretaries of Energy 

and Agriculture, to set the annual applicable volumes based on 
9

a review of the implementation of the program plus an analysis 

of six listed factors. Id. § 7545(o)(2)(B)(ii). For years not 

specified in the table, EPA must publish the applicable volumes 

fourteen months before the year in which they will apply—

volumes that, shortly before the start of the compliance year, 

EPA translates into percentage standards. Id. 

Various “waiver” provisions require or permit EPA to 

lower the annual applicable volumes. Two are relevant for the 

purposes of this case. First, under the “cellulosic waiver 

provision,” EPA must make its own projection of the volume 

of cellulosic biofuel that will be produced in the following year. 

Id. § 7545(o)(7)(D)(i). If that projection is less than the 

statutory figure, the agency must use its own projection as the 

applicable volume of cellulosic biofuel. Id.; see Am. Petroleum 

Inst. v. EPA, 706 F.3d 474, 477–80 (D.C. Cir. 2013) (API). The 

same cellulosic waiver provision authorizes (but does not 

require) EPA to also reduce the advanced biofuel and total 

renewable biofuel volume requirements “by the same or a 

lesser volume” as the cellulosic biofuel reduction, 42 U.S.C.

§ 7545(o)(7)(D)(i), and EPA has “broad discretion” regarding 

whether and how to do that, Monroe Energy, LLC v. EPA, 750 

F.3d 909, 915 (D.C. Cir. 2014). Separately, under the “general 

waiver provision,” EPA may reduce any of the statutory 

applicable volumes if it determines “that implementation . . . 

would severely harm the economy or environment,” or “that 

there is an inadequate domestic supply.” 42 U.S.C.

§ 7545(o)(7)(A); see Ams. for Clean Energy v. EPA, 864 F.3d 

691, 707–13 (D.C. Cir. 2017) (ACE). 

After EPA determines the waiver-adjusted applicable 

volumes, it must translate those volumes into “renewable 

volume obligation[s]” for each category of renewable fuel for 

the upcoming compliance year. 42 U.S.C. § 7545(o)(3)(B)(i). 

The volume obligation for each category of renewable fuel is 

expressed as an “applicable percentage,” also known as a 
10

“percentage standard,” calculated by dividing the adjusted 

applicable volume for that category of fuel by the total 

anticipated volume of non-renewable transportation fuel that

will be introduced into commerce (which EPA derives based 

on an estimate provided by the Energy Information 

Administration) in the coming compliance year. Id.

§ 7545(o)(3)(A), (B)(ii)(II); 40 C.F.R. § 80.1405(c). The 

statute calls on EPA to publish the percentage standards not 

later than November 30—a month before the start of the 

compliance year. 42 U.S.C. § 7545(o)(3)(B)(i). 

EPA must place the renewable volume obligations on

“refineries, blenders, and importers, as appropriate.” 42 U.S.C.

§ 7545(o)(3)(B)(ii)(I); see also id. § 7545(o)(2)(A) (requiring

EPA to promulgate implementing regulations, including

“compliance provisions applicable to refineries, blenders,

distributors, and importers, as appropriate,” designed to ensure

that transportation fuelsold or introduced into the United States

“contains at least” the required annual applicable volumes). 

The entities that EPA designates to meet the volume

obligations are known as “obligated parties.” Monroe Energy,

750 F.3d at 912. Each obligated party must ensure that the

volume of non-renewable fuel it sells or introduces into U.S.

commerce is matched by selling or introducing a corresponding

volume of each category of renewable fuel at the level EPA’s

percentage standard requires for that category. See ACE, 864

F.3d at 699. The percentage standards are set in the

anticipation that, if each obligated party meets them and EPA’s

projection regarding the country’s total transportation fuel

supply bears out, the amount of each category of renewable

fuel introduced into the economy in the upcoming compliance

year will equal the applicable volumes for that year. Id. 

Obligated parties bear no direct responsibility for any shortfalls

in the applicable volumes so long as they comply with the

percentage standards.
11

EPA assigns a set of “renewable identification numbers” 

(RINs) to each batch of renewable fuel that is produced or 

imported for use in the United States. 40 C.F.R. § 80.1426; see 

42 U.S.C. § 7545(o)(5); Monroe Energy, 750 F.3d at 913. The 

number of RINs assigned to each batch corresponds to the 

amount of ethanol-equivalent energy per gallon in that batch. 

See 40 C.F.R. § 80.1415; Monroe Energy, 750 F.3d at 913. 

RINs remain attached to the renewable fuel until that fuel is 

purchased by an obligated party or blended into fossil fuels to 

be used for transportation fuel. See ACE, 864 F.3d at 699 

(citing 40 C.F.R. § 80.1429(b)(1)–(2)). At that point the RINs 

become “separated,” meaning they are, in effect, a form of 

compliance credit. Id. Obligated parties demonstrate their 

compliance with their renewable fuel obligations by “retiring” 

RINs in annual compliance demonstrations to EPA. 40 C.F.R. 

§§ 80.1427(a), 80.1451(a)(1). 

Because the four categories of renewable fuel are nested, 

obligated parties can comply with their obligations for a type 

of fuel by retiring any combination of RINs corresponding to 

that category of fuels or any subset thereof. See 40 C.F.R. 

§ 80.1427(a)(3)(i). For instance, retiring a cellulosic biofuel or 

biomass-based diesel RIN counts not only toward the volume 

obligation for that fuel, but also toward both the advanced 

biofuel and total renewable fuel obligations. Thus, “if one 

million gallons of cellulosic biofuel are blended into the fuel 

supply, the statute allows those one million gallons to be 

credited toward the advanced biofuel and total renewable fuel 

obligations in addition to the cellulosic biofuel obligation.” 

ACE, 864 F.3d at 698. 

Obligated parties who have more RINs than they need may 

sell or trade their excess, 40 C.F.R. § 80.1428(b), or they may 

“bank” those RINs for use to meet up to 20 percent of their 

obligations for the following compliance year, Monroe Energy, 

750 F.3d at 913; see 40 C.F.R. § 80.1427(a)(1), (5); Regulation 
12

of Fuels and Fuel Additives: Changes to Renewable Fuel 

Standard Program, 75 Fed. Reg. 14,670, 14,734–35 (Mar. 26, 

2010). Obligated parties without enough RINs to meet their 

compliance obligations may purchase RINs, use banked RINs 

from the prior year, or carry a deficit forward to the following 

year to be satisfied together with the following year’s 

obligations. See ACE, 864 F.3d at 699–700; see also 42 U.S.C. 

§ 7545(o)(5)(D); 40 C.F.R. § 80.1427(b).

B. Procedural Background

The procedural history of these cases follows two paths: 

first, the proceedings relevant to the challenge that EPA 

arbitrarily declined to initiate a rulemaking to modify the 2010 

regulation designating refineries and importers, but not 

blenders, as obligated parties; and second, the proceedings 

challenging the 2017 Rule. 

1. 2007, 2010, and 2017 Point of Obligation 

Proceedings

In its 2007 regulations implementing the RFS program,

EPA designated refiners and importers, but not blenders, as the

“appropriate” parties to meet the renewable fuel obligation. 72

Fed. Reg. 23,900, 23,923–24 (May 1, 2007). At the time, those

designations were not challenged in court. EPA reaffirmed its

designations in a 2010 regulation now commonly known as the

“point of obligation rule.” 75 Fed. Reg. at 14,721–22 (codified

at 40 C.F.R. § 80.1406(a)(1)). During the 2010 rulemaking,

several refiners—including petitioner Valero Energy

Corporation—argued that failing to obligate blenders, who

combine renewable fuel with fossil fuels, would make the RFS

program unworkable. EPA concluded that the program was

functioning adequately and that the burdens and disruption

from changing the point of obligation would outweigh any
13

benefits. See Summary and Analysis of Comments 3.9.2, Alon

J.A. 287–90. Although other aspects of the 2010 regulations

were challenged in court, see, e.g., Nat’l Chicken Council v.

EPA, 687 F.3d 393 (D.C. Cir. 2012); Nat’l Petrochemical &

Refiners Ass’n v. EPA, 630 F.3d 145 (D.C. Cir. 2010), the point

of obligation rule was not.

On December 14, 2015, EPA promulgated the volume 

requirements for 2014, 2015, and 2016. Renewable Fuel 

Standard Program, 80 Fed. Reg. 77,420 (Dec. 14, 2015). In so 

doing, EPA exercised its general waiver authority to lower the 

total renewable fuel volumes based on a finding of inadequate 

domestic supply due to market factors “affecting the ability to 

distribute, blend, dispense, and consume . . . renewable fuels” 

at the levels required by statute. Id. at 77,435/2. Among those 

factors was “the slower than expected development of the 

cellulosic biofuel industry.” Id. at 77,422. The agency thought 

an additional “real world constraint[]” was the “E10 

blendwall”—the difficulty for most American vehicle engines 

to run on blends containing more than 10% ethanol. Id. at 

77,423. EPA explained that those factors made the statutory 

requirements “impossible to achieve.” Id. at 77,422/2. This 

Court later vacated the general waiver on the ground that EPA 

had misinterpreted the statutory term “inadequate domestic 

supply” to include demand-side constraints such as the E10 

blendwall. See ACE, 864 F.3d at 704–13.

On February 12, 2016, sixty days after EPA promulgated 

the volume requirements for 2014–16, the Alon Petitioners 

petitioned this Court for review of the 2010 point of obligation 

rule. These petitions contend that the rule was arbitrary and 

capricious insofar as it failed to impose the obligation on 

downstream blenders—the parties petitioners think are best

able to comply with it. The petitions assert jurisdiction under 

the after-arising provision in 42 U.S.C. § 7607(b)(1), which 
14

permits otherwise-untimely challenges to a rule if the 

challenges are “based solely on grounds arising after” the sixtyday deadline for seeking judicial review. The petitioners assert 

that EPA’s exercise of its general waiver authority in the 2014–

16 volume regulations, and its acknowledgment of the RFS 

program’s shortcomings as of that time, provided such an afterarising ground.

The Alon Petitioners simultaneously petitioned EPA to 

revise the point of obligation rule. Some of their requests were 

styled as petitions for a rulemaking. Others were styled as 

petitions for mandatory reconsideration under 42 U.S.C. 

§ 7607(d)(7)(B), which requires EPA to reconsider a rule if 

centrally important objections were impracticable to raise 

during the comment period or “arose after” that period “but 

within the time specified for judicial review.” The petitions 

cited the waiver in the 2014–16 volume regulations and EPA’s 

acknowledgment of program difficulties as grounds supporting 

mandatory reconsideration. This Court held in abeyance the 

petitions for review of the point of obligation rule pending

resolution of the petitions to revise it.

On November 10, 2016, EPA published a proposed denial 

of the petitions to revise the point of obligation rule. On 

November 22, 2017, after reviewing more than 18,000 

comments on the proposal, EPA denied the petitions. It 

concluded that the statutory requirements for mandatory 

reconsideration were not met, so it treated all the filings as 

petitions for a rulemaking. Denial of Petitions for Rulemaking 

to Change the RFS Point of Obligation, EPA-HQ-OAR-2016-

0544-0525, at 7 (Nov. 22, 2017) (EPA Denial), Alon J.A. 61. 

EPA then denied the petitions on the ground that “changing the 

point of obligation would . . . likely result in a decrease in the 

production, distribution, and use of [renewable] fuels” and 

would “do nothing to incentivize the research, development, 
15

and commercialization of cellulosic biofuel technologies 

critical for the growth of the RFS program in future years.” 

EPA Denial at 8–9, Alon J.A. 62–63.

Within sixty days (in December 2017 and January 2018),

the Alon Petitioners sought judicial review of that denial, 

which it cast as a final agency action under section 7607(b)(1). 

The two sets of petitions—the February 2016 petitions for 

review of the 2010 point of obligation rule and the 2017–18 

petitions for review of EPA’s refusal to reconsider the rule—

were consolidated and are now before us.

2. 2017 Annual Volumetric Proceedings

EPA issued its 2017 annual volumetric rule on December 

12, 2016. The 2017 Rule establishes: (1) the applicable volume 

for biomass-based diesel for 2018, 81 Fed. Reg. at 89,751/2; 

(2) the waiver-adjusted applicable volumes for cellulosic 

biofuel, advanced biofuel, and total renewable fuel for 2017, 

id. at 89,747 tbl. I-1; and (3) percentage standards for all four 

fuel types for 2017, id. at 89,751, tbl. I.B.6-1. 

EPA exercised its mandatory cellulosic waiver authority to 

decrease the 2017 applicable volume for cellulosic biofuel by 

more than 94 percent, dropping 5.189 billion gallons from the 

statutory target of 5.5 billion gallons, to 311 million gallons. 

Id. at 89,750/2; 42 U.S.C. § 7545(o)(2)(B)(i)(III). EPA then 

had discretion under that same waiver authority to cut as much 

as 5.189 billion gallons off the statutory volumes for advanced 

biofuel and total renewable fuel. See 42 U.S.C. 

§ 7545(o)(7)(D)(i); 81 Fed. Reg. at 89,762 & tbl. IV.A-1. EPA 

partially exercised that authority, reducing the 9-billion-gallon 

statutory target for advanced biofuel by 4.72 billion gallons, 

resulting in an adjusted applicable volume of 4.28 billion 

gallons—a greater than 50% decrease. 81 Fed. Reg. at 89,750–

51; 42 U.S.C. § 7545(o)(2)(B)(i)(II). EPA reduced the total 
16

renewable fuel volume requirements by the same amount, 

lowering the statutory target of 24 billion gallons to 19.28 

billion gallons. 81 Fed. Reg. at 89,751/1; 42 U.S.C. 

§ 7545(o)(2)(B)(i)(I). EPA considered but decided against also 

using its general waiver authority to further lower the 

applicable volume of total renewable fuel. 81 Fed. Reg. at

89,751/1.

Using the waiver-adjusted applicable volumes, EPA set 

the 2017 percentage standards for each of the four renewable 

fuel categories. See id. at 89,751, 89,799–801. Finally, EPA 

set the biomass-based diesel applicable volume for 2018 at 2.1 

billion gallons. Id. at 89,751/2. EPA received comments 

urging it to reassess the point of obligation in the 2017 Rule, 

but declined to address them on the grounds that the comments 

were “beyond the scope” of the 2017 rulemaking. Response to 

Comments at 542, Coffeyville J.A. 761. 

After EPA published the 2017 Rule, various parties 

petitioned for judicial review. The Coffeyville Petitioners 

contend that EPA erred by refusing to reconsider which types

of parties would bear the direct compliance obligation under 

the 2017 Rule. They also argue that EPA arbitrarily calculated 

the 2017 production of cellulosic biofuel and arbitrarily 

exercised its discretionary cellulosic waiver authority, resulting 

in percentage standards that are too high. NBB argues that 

EPA set the 2018 applicable volume for biomass-based diesel 

too low by considering factors it should not have and omitting 

or incorrectly assessing others. Two trade associations 

representing refineries have intervened in defense of EPA’s 

biomass-based diesel decision, and a coalition of trade 

associations representing renewable fuel producers and 

refineries have intervened to oppose the Coffeyville 
17

Petitioners’ claims. None of the petitioners’ challenges 

succeeds.

III. Standard of Review

“This court applies the familiar, deferential standard 

announced in Chevron, U.S.A., Inc. v. Natural Resources 

Defense Council, Inc., to sustain any reasonable agency 

interpretation of ambiguity in the Clean Air Act.” Nat’l Ass’n 

for Surface Finishing v. EPA, 795 F.3d 1, 7 (D.C. Cir. 2015). 

“We employ the deferential State Farm standard of review 

when reviewing arguments based on allegedly arbitrary or 

unreasoned agency action.” ACE, 864 F.3d at 726 (citing 

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. 

Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Under that rubric, 

EPA’s actions are “presumptively valid provided [they] meet[] 

a minimum rationality standard.” Nat. Res. Def. Council, Inc. 

v. EPA, 194 F.3d 130, 136 (D.C. Cir. 1999). We uphold EPA’s 

actions so long as they are “reasonable and reasonably 

explained.” Jackson v. Mabus, 808 F.3d 933, 936 (D.C. Cir. 

2015).

IV. 2010 Point of Obligation Rule

We start with the Alon Petitioners and their challenges to

the 2010 point of obligation rule.

A. Jurisdiction

We begin, as we must, with our jurisdiction. In general 

terms, the question presented involves our review of rules 

promulgated under the Clean Air Act, or EPA’s failure to 

amend them, after the initial window for seeking judicial 
18

review has passed. Various statutory provisions frame this 

inquiry.

Section 7607(b)(1) of Title 42 provides for judicial review 

of regulations promulgated by the Administrator of EPA under 

the Clean Air Act. The first sentence of section 7607(b)(1) 

vests this Court with exclusive jurisdiction to review 

“nationally applicable regulations promulgated, or final action 

taken, by the Administrator” under the Act. The fourth 

sentence of section 7607(b)(1) specifies the time for seeking 

judicial review. It imposes a sixty-day time limit, but provides 

an exception for petitions based on grounds arising after the 

limit: “Any petition for review under this subsection shall be 

filed within sixty days from the date notice of such 

promulgation, approval, or action appears in the Federal 

Register, except that if such petition is based solely on grounds 

arising after such sixtieth day, then any petition for review 

under this subsection shall be filed within sixty days after such 

grounds arise.” 

Section 7607(d) of Title 42 sets forth provisions for 

various rulemakings under the Clean Air Act, including for the 

“promulgation or revision of any regulation” involving the RFS 

program. Id. § 7607(d)(1)(E). Section 7607(d)(7)(B) 

addresses various issues regarding exhaustion, agency 

reconsideration, and judicial review. The first sentence of that 

provision imposes a conventional exhaustion requirement, 

limiting judicial review to objections “raised with reasonable 

specificity during the period for public comment.” The second 

sentence requires EPA to reconsider regulations in certain 

narrow circumstances: “If the person raising an objection can 

demonstrate to the Administrator that it was impracticable to 

raise such objection within such time or if the grounds for such 

objection arose after the period for public comment (but within 

the time specified for judicial review) and if such objection is 
19

of central relevance to the outcome of the rule, the 

Administrator shall convene a proceeding for reconsideration 

of the rule and provide the same procedural rights as would 

have been afforded had the information been available at the 

time the rule was promulgated.” The third sentence of section 

7607(d)(7)(B) makes any “refusal” to provide such mandatory 

reconsideration judicially reviewable.

At various times in this litigation, the petitioners have 

asserted three different jurisdictional theories. First, EPA’s 

refusal to revise the point of obligation rule in 2017 was a final 

action reviewable under the first sentence of section 

7607(b)(1), regardless of the after-arising provision. Second, 

EPA’s statements and actions in its 2014–16 volume regulation 

constitute after-arising grounds permitting a challenge to the 

point of obligation rule as promulgated in 2010. Third, these 

same EPA statements and actions triggered a right to 

mandatory reconsideration under section 7607(d)(7)(B), which 

in turn makes the denial of reconsideration judicially 

reviewable. As explained below, we conclude that the first 

contention is correct, the second has been abandoned, and the 

third lacks merit.

1. Final Agency Action Under Section 7607(b)(1)

In 2016, various refiners petitioned EPA for a rulemaking 

to modify the point of obligation rule. The petitions urged that 

the need for a modification became evident in 2015, when EPA 

waived certain statutory volume requirements and concluded 

that changing economic conditions had made the requirements 

“impossible to achieve.” 2014–16 Rule, 80 Fed. Reg. at 

77,422/2. In November 2017, EPA denied the rulemaking 

petitions on the ground that any current problems with the RFS 

program were manageable and that changing the point of 

obligation at this juncture would be disruptive. EPA Denial at 
20

8–9, Alon J.A. 62–63. The refiners sought review of the denial 

in December 2017 and January 2018. As petitioners in this 

Court, they contend that the November 2017 denial constituted 

final agency action reviewable under section 7607(b)(1). We 

agree.

As noted above, the first sentence of section 7607(b)(1) 

gives this Court exclusive jurisdiction to review any nationally 

applicable “final action” taken by EPA under the Clean Air 

Act. The parties agree that the denial of the rulemaking 

petitions was nationally applicable, final, and taken under the 

Clean Air Act. It was also agency “action” within the meaning 

of the statute. That word “bears the same meaning in [section 

7607(b)(1)] that it does under the Administrative Procedure 

Act,” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 478 

(2001), which defines “agency” to include EPA, 5 U.S.C. 

§ 551(1), and “agency action” to include “the whole or a part 

of an agency rule, order, license, sanction, relief, or the 

equivalent or denial thereof, or failure to act,” id. § 551(13) 

(emphases added). So, EPA’s denial of the petitions for 

rulemaking was a reviewable “action.”

The petitions for review were timely. As a general matter, 

section 7607(b)(1) requires a petition for review to be filed 

within sixty days of when “notice of such promulgation, 

approval, or action appears in the Federal Register.” Here, the 

“action” at issue—denial of the petitions for rulemaking—was 

published in the Federal Register on November 22, 2017, and 

the petitions for review of that action were filed within sixty 

days of that date. Moreover, this conclusion does not depend 

on the after-arising provision. To the contrary, because the 

petitions for review were filed within sixty days of the “action” 

under review, the exception for “grounds arising after such 

sixtieth day” was not triggered.
21

Our caselaw confirms this framing of the jurisdictional 

issue. In Massachusetts v. EPA, 415 F.3d 50 (D.C. Cir. 2005), 

this Court held that EPA’s denial of a petition to regulate 

greenhouse gas emissions as air pollutants was itself “final 

action” reviewable under section 7607(b)(1). See id. at 53–54 

(opinion of Randolph, J.); id. at 61 (Sentelle, J., concurring in 

the judgment). The Supreme Court reversed our judgment on 

the merits, but agreed that we had jurisdiction. Massachusetts 

v. EPA, 549 U.S. 497 (2007). In particular, the Court noted that 

section 7607(b)(1) “expressly permits review” of EPA’s 

“rejection of [a] rulemaking petition.” Id. at 520, 528; see also 

id. at 517 (section 7607(b)(1) affords “the right to challenge 

[this] agency action unlawfully withheld”). Likewise, in 

Natural Resources Defense Council v. EPA, 824 F.2d 1146 

(D.C. Cir. 1987) (en banc) (NRDC), we held that a 1985 

decision to withdraw proposed amendments to certain 1976 

regulations—which we described as a “decision not to amend” 

the regulations—was “reviewable agency action” under 

section 7607(b)(1). Id. at 1150 (quotation marks omitted). We 

concluded that the petition for review at issue, which on its face 

challenged the 1985 withdrawal decision, was not, in 

substance, an untimely “‘back-door’ challenge to the 1976 

regulations.” Id. On that point, we reasoned that the petitioners 

claimed legal errors in the 1985 withdrawal and sought vacatur 

only of that order. Likewise, in this case, the petitions for 

review filed in 2017 and 2018 raise no back-door challenge to 

the 2010 regulation: the petitions contend that EPA in 2017 

arbitrarily refused to take account of changing economic 

conditions, and they seek vacatur only of the 2017 order 

denying a new rulemaking going forward. 

Background principles of administrative law reinforce our 

conclusion that the denial of a petition to modify a rule based 

on changed circumstances is itself a reviewable order. 

Ordinarily, the denial of a petition to amend or rescind a 
22

regulation is judicially reviewable. See, e.g., NLRB Union v. 

FLRA, 834 F.2d 191, 195–96 (D.C. Cir. 1987). When the 

petition to amend attacks defects in the regulation as originally 

promulgated, and when the time limit for seeking review of the 

regulation has passed, questions can arise about whether the 

time limit is being improperly circumvented. In these 

circumstances, we have held that the petitioner cannot raise 

procedural challenges to the regulation, but can raise 

substantive arguments that the regulation is unauthorized by or 

conflicts with a statute. See id. at 196–97. But the 

circumvention concern does not even arise when the petitioner 

raises arguments about changed circumstances or new 

information. Those kinds of arguments—that recent 

developments compel the amendment of an older regulation—

are always cognizable through review of the denial of a petition 

to amend, though they trigger an “extremely limited” review 

on the merits. Id. at 196. Our decision today harmonizes the

judicial-review provisions of the Clean Air Act with this 

general background principle.

EPA recognizes the general rule that, under the NLRB 

Union line of cases, the denial of a petition to amend a rule is a 

reviewable order, which supports both challenges based on 

recent developments and substantive challenges to the original 

regulation. Nonetheless, EPA urges a different rule where the 

applicable judicial-review provision contains a time limit for 

seeking review and an exception for grounds arising after the 

time limit, as in the Clean Air Act. In those circumstances, 

according to EPA, a challenge to the denial of a petition to 

amend is untimely—and the denial is thus entirely 

unreviewable—unless the after-arising provision is satisfied. 

EPA rests this conclusion on National Mining Ass’n v. 

Department of Interior, 70 F.3d 1345 (D.C. Cir. 1995), and

American Road & Transportation Builders Ass’n v. EPA, 588 
23

F.3d 1109 (D.C. Cir. 2009) (ARTBA), but neither decision 

supports its position.

National Mining involved judicial review under the 

Surface Mining Control and Reclamation Act (SMCRA), 

which requires petitions for review to be filed “within sixty 

days” of the agency action at issue “or after such date if the 

petition is based solely on grounds arising after the sixtieth 

day.” See 70 F.3d at 1350. In 1986, parties petitioned the 

Department of Interior to rescind a 1979 SMCRA regulation 

on two grounds. First, the petitioners argued that the rule was 

inconsistent with the statute—an argument attacking the 

regulation itself and “available” when the regulation was 

originally promulgated. See id. After the agency declined to 

rescind the rule, the challengers sought judicial review. We 

held that the after-arising provision made this first challenge 

untimely, by explicitly requiring challenges to a regulation 

either to be filed “within the statutory period” or to “meet the 

after-arising test.” Id. at 1350–51. At the same time, however, 

we held that the petitioners’ second challenge—to the agency’s 

1986 decision refusing to “repeal” the regulation based on 

changed circumstances—was timely and reviewable. Id. at 

1352. To be sure, we described the latter challenge as resting 

on “grounds that arose after the sixtieth day.” Id. But we failed 

to explain what jurisdictional theory that observation 

supported: a challenge to the 1979 regulation rendered timely 

by the after-arising exception; or a challenge, in substance as 

well as form, to the 1986 refusal to repeal, akin to the challenge 

that we held reviewable in NRDC. Instead, we simply 

concluded that, under the “limited scope of our review,” the 

agency did not “act[] unreasonably in denying the petition for 

rulemaking.” Id. at 1352–53. Thus, while National Mining

blessed jurisdiction to review agency refusals to amend 

regulations based on changed factual circumstances, it did not 
24

ultimately address what we clarify today—the precise statutory 

basis for that jurisdiction. 

ARTBA applied the reasoning of National Mining to the 

Clean Air Act, which also contains a time limit for judicial 

review and an exception for after-arising grounds. ARTBA 

involved a 2002 petition to amend 1997 regulations on the 

ground that they allowed states “to adopt precisely the kinds of 

regulations that the statute forbids.” 588 F.3d at 1110. As in 

National Mining, the challenge was thus a substantive attack 

on a regulation as originally promulgated. We held that, under 

National Mining, EPA’s “denial of a revision-seeking petition 

does not allow review of alleged substantive defects in the 

original rule even under the deferential standards applicable to 

review of such denials, outside the statutory limitations period 

running from the rule[’s] original promulgation.” Id. at 1113 

(emphasis added). In other words, National Mining “require[d] 

us to treat ARTBA’s petition to EPA as a challenge to the 

regulations it sought revised.” Id. at 1110. As a result, 

dismissal was necessary unless the petition satisfied the 

exception for after-arising grounds, which it did not. See id. 

Neither decision controls here, where the 2017 and 2018 

petitions for review challenge not the point of obligation 

regulation as originally promulgated in 2010, but the failure to 

amend the regulation in light of changed circumstances flagged 

by EPA in 2015. EPA rejected that argument in 2017, and the 

petitioners sought review of the rejection within sixty days. In 

substance as well as form, the challenge was to the 2017 refusal 

to amend, not to the underlying 2010 regulation. Under these 

circumstances, there was no risk of circumventing the original 

time limit. Therefore, there was also no reason to treat the 2010 

promulgation and the 2017 refusal to amend as one-and-thesame agency action, despite binding APA definitions treating 

them as separate.
25

Precedent aside, EPA’s proposed approach—making the 

after-arising provision the exclusive vehicle for challenging 

refusals to amend regulations based on new information or 

changed circumstances—creates various difficulties. For one 

thing, there is a conceptual mismatch between that provision 

and these kinds of challenges. Though the after-arising 

exception and the opportunity to seek rule revision based on 

post-rulemaking events may seem similar, the first allows an 

intervening event to secure judicial review on the basis of 

defects extant at the time of the rulemaking, whereas the 

second allows review on the question whether intervening 

events have fatally undermined the original justification for the 

rule. The arrow of time runs forward, not backward, so it is at 

best awkward—and at worst incoherent—to speak of a later

development rendering unlawful an earlier promulgation. 

Economic developments in 2015 may have made it arbitrary 

for EPA to adhere to the point of obligation rule in 2017, but 

they cannot have retroactively made arbitrary its promulgation 

in 2010.

Even worse, the Clean Air Act’s after-arising provision, if 

used to judge the timeliness of challenges based on new 

information, would be difficult to apply, capriciously narrow, 

or both. To satisfy that provision, a petition for review must be 

both (i) based “solely” on after-arising grounds and (ii) filed 

“within sixty days after such grounds arise.” 42 U.S.C. 

§ 7607(b)(1). Yet the case for changing an environmental 

regulation will almost never manifest itself at one discrete 

moment. Instead, it will accumulate progressively over time, 

as scientific knowledge advances or economic conditions 

change. And so, under EPA’s approach, the relevant filing 

deadlines would become practically unknowable. When did 

some environmental risk become serious and obvious enough 

to compel a rulemaking to strengthen an existing regulation? 

That will usually be a hard question, and it would be little short 
26

of miraculous if the answer turned out to be on a date certain 

within sixty days of the filing of a petition for review, as 

required to satisfy the after-arising provision. 

In contrast, the approach we have sketched out produces 

simple questions and discernible deadlines: ask when EPA 

denied the rulemaking petition, then add sixty days. If 

possible, we should avoid trying to fix arbitrarily precise 

accrual dates for events that develop incrementally over time. 

See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115–

21 (2002). And we should avoid jurisdictional tests that are 

complex as opposed to straightforward. See, e.g., Hertz Corp. 

v. Friend, 559 U.S. 77, 94 (2010). Treating the denial of a 

petition to amend a rule based on changed circumstances as 

reviewable agency action honors both principles, while 

attempting to shoehorn such denials into the after-arising 

provision does the opposite. 

We acknowledge that, in Oljato Chapter of Navajo Tribe 

v. Train, 515 F.2d 654 (D.C. Cir. 1975), we assumed that the 

after-arising provision would govern review of orders denying 

petitions to modify EPA rules based on changed circumstances. 

But our only holdings were that such petitions must first be 

presented to EPA, id. at 666, and then are reviewable directly 

in the courts of appeals, id. at 657–65. Moreover, our 

assumption was understandable in context; the petitioners had 

missed the statutory deadline to file a petition for review (then 

thirty days), see id. at 657, so they pressed alternative 

jurisdictional theories (involving either district-court review or 

the after-arising provision) that would avoid that deadline. 

Furthermore, we expressly reserved the precise bounds of what 

constituted a petition based solely on after-arising grounds. See 

id. at 666–68. Finally, we stressed that review should generally 

be available “when new information casts doubt upon the 

validity of a [regulatory] standard.” Id. at 665. At the time, the 
27

after-arising provision contained no separate deadline 

requiring a petition for review to be filed within sixty days of 

the after-arising ground. See id. at 657 n.3. So the difference 

between “direct review” of a regulation through the afterarising provision and review of a “refusal to revise” the 

regulation appeared largely semantic. See id. at 666. But, two 

years after Oljato was decided, Congress amended section 

7607(b)(1) to include the separate filing deadline, see Pub. L. 

No. 95-95 § 305(c)(3), 91 Stat. 685, 776 (1977), which, as 

explained above, made the after-arising provision a singularly 

poor vehicle for securing the review that Oljato assumed would 

be readily available. 

After Oljato, we held in Group Against Smog & Pollution 

v. EPA, 665 F.2d 1284 (D.C. Cir. 1981), that the failure to 

challenge a 1974 regulation within the original sixty-day 

deadline did not bar “judicial review of the agency’s 

subsequent refusal to revise the standard on the basis of new 

information.” Id. at 1291. Quoting liberally from Oljato, we 

suggested that such review would proceed through the afterarising provision. Id. at 1289. But we permitted review even 

though the after-arising provision, as amended, could not have 

applied. The case involved comments filed with EPA in April 

1977, which we treated as a petition for a rulemaking. Id. at 

1290 & n.47. On April 13, 1978, EPA declined to amend the 

rule as requested. Id. at 1288. The ensuing petition for review 

was filed on June 12, 1978—more than a year after the 

technological changes discussed in the comments, but precisely 

sixty days after the refusal to amend. See id. Because the 

petition for review was not filed within sixty days of the 

asserted after-arising grounds, the after-arising provision 

plainly did not apply. So, review must have rested on the 

theory that the refusal to amend was itself a reviewable action 

triggering its own sixty-day filing window.
28

The approach we follow here—treating denials of 

rulemakings based on new facts as independently reviewable 

decisions—does not reduce the after-arising provision to 

surplusage. Our cases have recognized other circumstances 

triggering the after-arising provision, including judicial 

decisions that significantly “changed the legal landscape” 

faced by petitioners, Honeywell Int’l, Inc. v. EPA, 705 F.3d 

470, 473 (D.C. Cir. 2013), and “the occurrence of an event that 

ripens a claim,” Coalition for Responsible Regulation v. EPA, 

684 F.3d 102, 129 (D.C. Cir. 2012) (per curiam). In cases like 

these—where, for example, an intervening statute, regulation, 

or judicial decision extends old regulations to new parties—the 

after-arising ground is easily dated, the relevant filing 

deadlines are clear, and so the provision functions predictably. 

Moreover, where the after-arising provision does apply, it 

permits the petitioner to contend not only that changed 

circumstances warrant amending an existing regulation but 

also that the regulation was unlawful as originally 

promulgated. See, e.g., Honeywell, 705 F.3d at 473.

For these reasons, we conclude that we have jurisdiction 

to consider the petitioners’ argument that EPA arbitrarily 

refused to amend the point of obligation rule based on the 

changed circumstances cited by the petitioners.

2. After-Arising Grounds Under Section 7607(b)(1)

The February 2016 petitions for review, filed before EPA 

resolved any of the rulemaking petitions, rested on the 

alternative jurisdictional theory that EPA’s publication of the 

2014–16 volume requirements constituted an after-arising 

ground within the meaning of section 7607(b)(1). Our 

conclusion above does not moot this question, because if this 

alternative theory were valid, then the petitioners could directly 

attack the point of obligation rule as originally promulgated. 
29

Nonetheless, the petitioners have abandoned this theory of 

jurisdiction. In their merits briefs, they never actually attack 

the 2010 rule as originally promulgated; instead, they challenge 

only the 2017 denial of their rulemaking petitions. Moreover, 

in requesting relief, they do not ask us to set aside the 2010 

rule, but only to “vacate the [2017] Denial[] and remand to 

EPA” for a rulemaking to change the point of obligation rule 

going forward. Alon Br. 58. And at oral argument, they 

disclaimed any challenge to the 2010 rule itself and confirmed 

that their only challenge was to EPA’s 2017 refusal to revise 

the point of obligation rule. See Rec. of Oral Argument at 

2:18:50–2:19:15.

3. Mandatory Reconsideration Under Section 

7607(d)(7)(B)

Finally, the petitioners assert jurisdiction under section 

7607(d)(7)(B), on the ground that EPA erroneously denied 

petitions for mandatory reconsideration of the point of

obligation rule. To review, section 7607(d)(7)(B) provides in 

relevant part that only objections “raised . . . during the period 

for public comment” may be “raised during judicial review.” 

But if the objector “can demonstrate to the Administrator that 

it was impracticable to raise such objection within such time or 

if the grounds for such objection arose after the period for 

public comment (but within the time specified for judicial 

review) and if such objection is of central relevance to the 

outcome of the rule,” then EPA must “convene a proceeding 

for reconsideration of the rule,” and any refusal to do so is 

judicially reviewable. Here, the petitioners assert that the 

ground for their objections—EPA’s statements and actions in 

its 2014–16 volume regulation—arose “after the period for 

public comment” on the 2010 point of obligation rule, and that 
30

the objections are “of central relevance to the outcome of the 

rule.”

The petitioners misapprehend the statutory text and 

structure. Section 7607(d)(7)(B) does not extend the 

jurisdictional deadline to seek judicial review imposed in 

section 7607(b)(1); instead, it specifies a non-jurisdictional 

exhaustion requirement. See EPA v. EME Homer City 

Generation, L.P., 572 U.S. 489, 512 (2014). Its first sentence 

generally requires parties to raise objections “during the period 

for public comment” in order to later present them in court. Its 

second sentence allows a narrow exception when a centrally 

important objection cannot feasibly be raised during the 

comment period—either because “the grounds for such 

objection arose after the period for public comment,” or 

because commenting was otherwise “impracticable.” If an 

objection fits within this exception, the consequences are 

weighty: EPA must grant reconsideration and conduct a new, 

full-dress, notice-and-comment rulemaking. And if EPA 

denies reconsideration, the objector may seek judicial review.

This “limited exception” to the normal exhaustion 

deadline, Util. Air Regulatory Grp. v. EPA, 744 F.3d 741, 746 

(D.C. Cir. 2014), does not come with a free pass from the 

subsequent deadline to seek judicial review. To the contrary, 

the second sentence of section 7607(d)(7)(B) covers only 

objections that arise after the close of the comment period, yet 

within the time specified for judicial review. As noted above, 

that time for judicial review—sixty days from the promulgation 

of the final rule—is specified in section 7607(b)(1). Section 

7607(d)(7)(B) does not enlarge that filing period, but merely 

fills a narrow gap within it: allowing orderly exhaustion of 

important objections that “first became known to the petitioner 

after the comment period ended, but before the period for 

petitioning for review expired.” Am. Petroleum Inst. v. Costle, 
31

665 F.2d 1176, 1192 (D.C. Cir. 1981). We recognize that, as a 

textual matter, the statutory phrase “but within the time 

specified for review” qualifies the requirement that the grounds 

must have arisen “after the period for public comment,” but not 

the alternative requirement that “it was impracticable” to raise 

the objection “during the period for public comment.” 

However, the petitioners do not invoke the impracticability 

prong of section 7607(d)(7)(B). Moreover, we have construed 

that prong to cover instances when the final rule was not a 

logical outgrowth of the proposed rule, Clean Air Council v. 

Pruitt, 862 F.3d 1, 10 (D.C. Cir. 2017) (per curiam), which 

likewise involve problems during the period for public 

comment on or petitioning for review of the regulation itself—

not problems that arise when circumstances change years or 

decades later.

The petitioners argued in briefing that the “time specified 

for judicial review” referenced in section 7607(d)(7)(B) 

encompasses not only the initial sixty-day window after a 

rule’s promulgation, but also the secondary sixty-day limit 

from after-arising grounds in the fourth sentence of section 

7607(b)(1). But as noted above, the petitioners abandoned at 

oral argument any reliance on the latter after-arising provision. 

Moreover, their theory would transform what we have 

described as a “limited” gap-filling provision, Util. Air 

Regulatory Grp., 744 F.3d at 746, into a perpetually looming 

threat of mandatory notice-and-comment reconsideration. 

Tellingly, the petitioners can cite no case employing section 

7607(d)(7)(B)’s mandatory reconsideration procedure for 

objections that arose after the close of the initial window for 

judicial review. Their interpretation would “make a mockery 

of Congress’[s] careful effort to force potential litigants to 

bring challenges to a rule issued under this statute at the 
32

outset.” Am. Rd. & Transp. Builders Ass’n v. EPA, 705 F.3d 

453, 458 (D.C. Cir. 2013) (quotation marks omitted).

Because the petitioners’ objections to the point of

obligation rule did not arise within the initial window for 

judicial review of the 2010 point of obligation rule, but only 

some five years later, EPA properly denied mandatory 

reconsideration. 

B. Merits of Challenges to EPA’s Refusal to Revise the 

2010 Point of Obligation Rule

The Alon Petitioners offer an array of arguments to 

challenge the denial. None, however, is persuasive.

We are reviewing EPA’s denial of a petition for 

rulemaking to amend the agency’s point of obligation rule. See 

supra Part IV.A.1. Accordingly, our review is “‘extremely 

limited’ and ‘highly deferential.’” New York v. EPA, 921 F.3d 

257, 261 (D.C. Cir. 2019) (quoting Massachusetts, 549 U.S. at 

527–28). “To set aside the agency’s judgment, [we] must 

conclude that EPA had not ‘adequately explained the facts and 

policy concerns relied on’ or that those facts did not ‘have some 

basis in the record.’” Id. (quoting WildEarth Guardians v. 

EPA, 751 F.3d 649, 653 (D.C. Cir. 2014)). We have no basis 

for such a conclusion. In denying the petition for rulemaking, 

EPA considered the “information currently before” it and 

determined “that the point of obligation is appropriately 

placed,” wrestling with the petitioners’ claims to the contrary. 

EPA Denial at 8, Alon J.A. 62. As is evident from our 

discussion below, EPA did so with enough thoroughness and 

reasonableness to satisfy our limited, deferential review.

We start with EPA’s reasoning, which petitioners say is 

arbitrary and capricious. See 42 U.S.C. § 7607(d)(9)(A). 
33

At the root of petitioners’ claim is a single premise: that 

the current point of obligation misaligns incentives by 

requiring those who refine fossil fuel, but not those who blend 

it, to meet the RFS program’s annual standards. In petitioners’ 

view, this misalignment forces refiners to purchase RINs to 

satisfy their RFS obligations, jacking up their costs, while 

giving windfall profits to blenders, who produce (but don’t 

consume) RINs. From this cycle of “RINsanity,” petitioners 

say, flow harms galore. Alon Reply Br. 25. Higher RIN prices 

not only threaten the financial viability of refiners (putting our 

economy and energy security in jeopardy), see, e.g., Alon Br. 

46, but they incentivize RIN hoarding, which feeds market 

volatility, and gives some market participants an unfair leg up, 

see, e.g., id. at 40. 

The problem with this argument, however, is that EPA 

reasonably explained why, in its view, there is no misalignment 

in the RFS program. According to EPA, refiners “recover the 

cost of the RINs they purchase” by passing that cost along in 

the form of “higher prices for the petroleum based fuels they 

produce.” EPA Denial at 25, Alon J.A. 79. It grounded that 

conclusion in studies and data in the record. EPA and the 

authors of the pertinent studies took advantage of the fact that 

there are pairs of petroleum products in which one variant is 

subject to the RIN obligation (such variants being awkwardly 

called “obligated fuels”), whereas its not-quite-identical twin is 

not. For example, gasoline and diesel sold for use in the United 

States are “obligated,” whereas the same fuels sold for export 

are not. EPA Denial at 23, Alon J.A. 77. The same goes for 

domestic diesel fuel, which is “obligated,” and jet fuel, which 

is not. Christopher R. Knittel et al., The Pass-Through of RIN 

Prices to Wholesale and Retail Fuels Under the Renewable 

Fuel Standard 4 (July 2015) (Knittel), Alon J.A. 534. 

Comparing these pairs, the agency found that as RIN prices 

increased, a gap “open[ed] up between” the price for obligated 
34

and unobligated fuels, a gap rather precisely matching the 

contemporaneous increase in RIN price—a strong indication 

that refiners were “recoup[ing] the costs associated with RIN 

prices.” EPA Denial at 23, Alon J.A. 77.

Further confirming the price relationship, Professor 

Knittel and his colleagues found that 73% of a change in RIN 

price was passed through in the form of higher petroleum prices 

in the same day, 98% within two business days. Knittel 26, 

Alon J.A. 536. 

Reviewing the findings, EPA (accurately) reported that the 

papers by Knittel and his colleagues, and by Argus Consulting 

Services, “concluded that the RIN cost was generally included 

in the sale prices of obligated fuels.” EPA Denial at 25, Alon 

J.A. 79; see Knittel 26, Alon J.A. 536; Argus Consulting 

Services, Do Obligated Parties Include RINs Costs in Product 

Prices? 15 (Feb. 2017), Alon J.A. 564 (“There are very specific 

correlating price data for diesel that indicate that refiners . . . 

pass along the RINs cost . . . .”).

A similar analysis, EPA concluded, reveals that just as 

(obligated) refiners do not pay excess costs, neither do blenders 

(who are not obligated under the program) nor integrated 

refiners (who perform their own in-house blending) reap 

windfall profits. True, both earn RINs, without purchasing 

them on the open market, by blending renewable fuel into 

petroleum blendstock. And true, as well, both can sell those 

RINs, enjoying whatever revenues market conditions and their 

own efficiencies permit. But as EPA quite accurately 

explained, this is only half the equation. In a competitive 

market there’s no such thing as a free lunch, and blenders and 

integrated refiners pay their tab just as others do; they just do 

so indirectly. To offer finished fuel without attached RINs at a 

competitive price, these entities must discount their blended 
35

fuel by roughly the value of the RINs that they detached and 

kept for themselves. EPA Denial at 29, Alon J.A. 83. In other 

words, they “sell the finished transportation fuel at a loss,” but 

“maintain[] profitability through RIN sales.” Id. at 27–28, 29, 

Alon J.A. 81–82, 83. 

To be sure, in response to EPA’s proposed denial, 

commenters criticized the studies relied on by the agency. 

They contended, for example, that Professor Knittel and his 

colleagues erred by removing certain spreads from the analysis, 

by including others, and by pooling the results of various 

comparisons. See EPA Denial at 25, Alon J.A. 79. But 

petitioners have not raised these arguments here, and for that 

reason we do not consider them. While petitioners do complain 

that EPA relied on a “preliminary” analysis, see Alon Br. 54; 

Alon Reply Br. 23, that objection—whatever its persuasive 

force—says nothing about the other studies in the record (for 

example, by Professor Knittel et al.). 

Petitioners try, instead, to trace various refiner problems to 

EPA’s refusal to obligate blenders. They suggest that the 

alleged misplacement of the point of obligation causes 

bankruptcies, see, e.g., Alon Br. 3, 47, and inflicts economic 

hardship on small refineries, see, e.g., id. at 49, especially in 

the form of inflicting wildly disproportionate RIN acquisition 

costs on them, see, e.g., Alon Reply Br. 26. But some of these 

events occurred after EPA issued its denial, see, e.g., Alon Br. 

49 (“following the Denial”); Alon Reply Br. 26 (“just after the 

Denial”), and are therefore not properly before us, see

Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 284 

(D.C. Cir. 1981). More importantly, the claims presuppose that

refiners cannot recover their RIN costs and that blenders reap 

windfall profits—suppositions that, as discussed above, EPA 

reasonably rejected.
36

Petitioners respond by plucking snippets from the denial, 

stringing them together with contrasting (bolded) conjunctions, 

and asserting that EPA’s “discussion of RIN prices” is 

“irreconcilably inconsistent.” Alon Br. 53. But we find no 

inconsistency on EPA’s part. 

Take one of petitioners’ examples:

. . . RIN prices had no “significant impact on retail 

gasoline (E10) prices,” JA75;

although “RINs . . . provide a price signal to 

consumers to help achieve . . . greater renewable fuel 

production and use,” JA75.

Alon Br. 53 (second and third alterations in original) (quoting 

EPA Denial at 21, Alon J.A. 75). At first blush, the two 

comments, located on the very same page, seem inconsistent. 

How could RIN prices have no “significant impact” on retail 

prices, while, at the same time, provide “a price signal to 

consumers”? 

They can do so for the simple reason that the remarks refer 

to different things, a detail omitted from petitioners’ brief. This 

becomes apparent when the passage from which petitioners 

plucked their quotes (bolded and underscored below) is viewed 

in full: 

External, non-EPA assessments similarly concluded 

that increased RIN prices had not had a significant 

impact on retail gasoline (E10) prices. When RIN 

prices rise, the market price of the petroleum 

blendstocks produced by refineries also rise to cover 

the increased RIN costs, in much the same way as they 

would rise in response to higher crude oil prices. The 

effective price of renewable fuels (the price of the 
37

renewable fuel with attached RIN minus the RIN 

price), however, decreases as RIN prices increase. 

When renewable fuels are blended into petroleum 

fuels these two price impacts generally offset one 

another for fuel blends such as E10 with a renewable 

content approximately equal to the required 

renewable fuel percentage standard. Higher RIN 

prices also generally result in higher prices for fuels 

with lower renewable content (such as E0 or 

petroleum diesel) and lower prices for fuels with 

higher renewable content (such as E85 or B20). The 

cost of the RIN therefore serves as a cross-subsidy, 

reducing the price of renewable fuels and increasing 

the price of petroleum based fuels in transportation 

fuel blends, thus incentivizing increased blending of 

renewable fuels into the transportation fuel pool. In 

this way the RINs also help provide a price signal to 

consumers to help achieve the Congressional goals 

of greater renewable fuel production and use. 

Fuels with higher renewable content are relatively 

cheaper to consumers than they would be absent high 

RIN prices, while fuels with lower renewable content 

are relatively more expensive when RIN prices are 

high.

EPA Denial at 20–21, Alon J.A. 74–75. 

As we can see, the first statement (no significant price 

impact) is referring to the price of E10—a blend of 90% 

gasoline, 10% ethanol. As EPA explained, RINs work as a 

“cross-subsidy,” effectively taxing the use of petroleum-based 

fuels (e.g., gasoline) and subsidizing the use of renewables 

(e.g., ethanol) in making a blended transportation fuel like E10. 

EPA Denial at 21, Alon J.A. 75. 
38

Before we dig in further, let’s take a step back. We must 

first recognize that EPA assumes that we are talking of a market 

where the RFS program, in effect, mandates minimum levels 

of renewables in marketed fuels, a mandate that necessarily 

impacts fuel prices. EPA is not making a claim that the 

mandatory inclusion of renewables in transportation fuel 

renders a gallon of gasoline lawfully purchased at the pump 

cheaper than it would have been absent the RFS program. 

To see what this means, start on the subsidy side: Suppose 

a blender can realize $2.25 on a gallon of ethanol with an 

attached RIN. If the blender can detach and sell that RIN for 

$0.05, then the net ethanol value is only $2.20—a $0.05 

savings that in a competitive market should pass through to 

consumers. Now take the tax side: Because refiners must 

purchase RINs to satisfy the RFS obligations that arise from 

selling gasoline to blenders, a blender’s value for a gallon of 

gasoline may rise, due to the RFS program, from, say, $2.75 to 

$2.76. See Dallas Burkholder, Office of Transportation & Air 

Quality, EPA, A Preliminary Assessment of RIN Market 

Dynamics, RIN Prices, and Their Effects 17, EPA-HQ-OAR2016-0544-0009 (May 14, 2015), Alon J.A. 337. As a result 

of both price impacts, EPA described, blended fuels with a 

higher percentage of renewable content (e.g., 85% ethanol) will 

be cheaper than they would have been (absent the program), 

whereas fuels with a lower percentage of renewable content 

(e.g., pure gasoline) will be more costly than they would have 

been (absent the program). EPA Denial at 21, Alon J.A. 75. 

For E10, the “two price impacts generally offset one another,” 

so (back to the first statement) any change in RIN price 

generally has no “significant impact on” the E10 price. Id. 

But that’s just E10. There is an effect (of differing 

magnitude) on, say, E85 or E0. And that is where the second 

statement (“provide a price signal”) comes in: the signal arises 
39

from a comparison of relative prices across the spectrum of 

transportation fuels. Again, as EPA explains, “[f]uels with 

higher renewable content are relatively cheaper to consumers 

than they would be absent high RIN prices, while fuels with 

lower renewable content are relatively more expensive when 

RIN prices are high.” Id. The two statements are consistent. 

Continuing the search for inconsistency, petitioners direct 

our attention to “EPA’s past pronouncements.” Alon Br. 50. 

In them, they see an irrational “about-face”—with EPA saying, 

at first, that “low RIN prices [were] a sign that the [RFS 

program] was working,” but claiming, now, “that high RIN 

prices are . . . desirable.” Id. at 51–52. Again, that’s not quite 

right. All EPA originally said was that when it first adopted 

the point of obligation, it did so based, in part, on its 

“expectation at that time that there would be an excess of RINs 

at low cost.” Regulation of Fuels and Fuel Additives: Changes 

to Renewable Fuel Standard Program, 74 Fed. Reg. 24,904, 

24,963/2 (May 26, 2009) (proposed rule); see also Alon Br. 50 

(citing EPA Denial at 13, Alon J.A. 67 (citing, in turn, 74 Fed. 

Reg. at 24,963)). EPA did not suggest that low RIN prices were 

a sign of market health—nor that high prices were a cause for 

alarm. 

In any case, EPA addressed petitioners’ concern over high 

RIN prices head on; the agency explicitly determined, on the 

current record, that “higher RIN prices” are not “indicative of 

a dysfunctional RIN market.” EPA Denial at 19, Alon J.A. 73. 

Rather, EPA explained, these prices accurately reflect the 

increasing cost associated with “getting ever-greater volumes 

of renewable fuel into the transportation fuel pool—the explicit 

goal [of] the RFS program.” Id. Put more bluntly, the increases 

in RIN prices are a completely understandable effect of the 

program’s ever-increasing pressure to expand renewable 

volumes. Pushing out along the supply curve takes the raw 
40

market price of the RIN-eligible fuel steadily into higher 

realms—except to the extent that production innovations or 

economies may tend to lower costs. So far as appears, it has 

nothing to do with EPA’s allocation of the obligation. 

What about EPA’s concern, petitioners ask, that including 

blenders in the point of obligation would expand the number of 

obligated parties and, as a result, ratchet up the program’s 

complexity? Isn’t that hard to square with EPA’s claim, made 

years earlier, that “essentially all downstream blenders . . . are 

[already] regulated parties”? Alon Br. 42 (quoting 75 Fed. 

Reg. at 14,722/2). Again, not at all. Although the participation 

of all (or nearly all) blenders in the RIN market subjects them 

to RFS registration, recordkeeping, and reporting 

requirements, “the majority of these downstream [regulated] 

parties are . . . currently not obligated parties.” EPA Denial at 

69, Alon J.A. 123 (emphasis added). As EPA explained, there 

“is a significant distinction between being a ‘regulated party’ 

and being an ‘obligated party.’” Id. “Obligated parties must 

meet all of [the requirements faced by regulated parties] and 

also calculate an annual renewable volume obligation, acquire 

the appropriate number of RINs in the market, practic[e] due 

diligence to ensure [the RINs’] validity, file annual compliance 

reports demonstrating compliance, and maintain records to that 

effect.” Id. at 69 n.205, Alon J.A. 123 (emphasis added); see, 

e.g., 40 C.F.R. §§ 80.1427(a), 80.1450(a), 80.1451(a), 

80.1454(a). It was not unreasonable for EPA to conclude that 

imposing these burdens on additional entities would add to the 

program’s complexity (and therefore be undesirable absent an 

adequate offsetting benefit). 

Nor was it unreasonable to find that going down this 

route—overhauling a foundational element of the program—

would create “uncertainty in the fuels marketplace.” EPA 

Denial at 2, Alon J.A. 56. As EPA said, “all parties regulated 
41

in the RFS program have made significant investments and 

decisions about their participation in the program and their 

position in the market on the basis of the existing regulations, 

including the definition of obligated parties.” EPA Denial at 

79, Alon J.A. 133. In these circumstances, it isn’t hard to 

imagine how changing course could throw players off their 

game. Of course, as petitioners note, uncertainty may have 

“plagued the RFS Program for years.” Alon Br. 37. But true 

or not, EPA needn’t pile on; the cure for uncertainty isn’t 

spawning more uncertainty.

Taking a step back, petitioners launch a closing broadside 

against the entire process. They assert that EPA “disregarded 

this Court’s remand” in ACE, 864 F.3d at 737, and arbitrarily 

credited some comments over others. Alon Br. 31–32, 55–56. 

But the ACE remand required, at most, that the agency “address 

the point of obligation issue.” 864 F.3d at 737. And, as 

detailed throughout this opinion, the agency has done so 

reasonably, analyzing the data and explaining its decision. 

Nothing more was required.

* * *

We have considered the Alon Petitioners’ other arguments 

and have found them to be either without merit or, in the case 

of the argument relying on 42 U.S.C. § 7545(o)(5)(A), see

Alon Br. 34, insufficiently developed, see, e.g., Masias v. EPA, 

906 F.3d 1069, 1077 (D.C. Cir. 2018). For the foregoing 

reasons, the petitions for review are denied.

V. 2017 Annual Volumetric Rule

We turn now to the Coffeyville Petitioners’ challenges.
42

A. Point of Obligation

We first consider the Coffeyville Petitioners’ challenge to 

EPA’s decision in the 2017 Rule not to reassess which 

categories of industry players are “obligated parties” under the 

renewable fuel program. As the Coffeyville Petitioners read it, 

the statutory provision requiring EPA to set annual renewable 

fuel percentage standards also imposes on EPA a 

nondiscretionary duty to reconsider—every year—which types 

of entities are obligated to demonstrate to EPA compliance 

with the percentage standards. See 42 U.S.C. § 7545(o)(3)(B). 

They claim EPA shirked that duty when it treated the issue as 

beyond the scope of its 2017 annual rulemaking. EPA counters 

that it identified the obligated parties in 2007 pursuant to 

Congress’s mandate to set “compliance provisions” for the new 

renewable fuel program, id. § 7545(o)(2), reaffirmed that 

decision in 2010, and that nothing in the mandate to calculate

the annual percentage standards requires it to reconsider the 

point of obligation each year. EPA also asserts that it 

appropriately addressed the Coffeyville Petitioners’ complaints 

that it obligated the wrong parties in a separate proceeding from 

its annual volumetric rulemaking.

1. Jurisdiction

EPA and a coalition of Respondent-Intervenors 

representing the renewable fuel and refinery industries assert 

that we lack jurisdiction because the Coffeyville Petitioners 

effectively challenge the compliance rule that has been on the 

books for a decade or so, see 40 C.F.R. § 80.1406(a)(1), and 

did not petition within 60 days of its publication or within 60 

days of any valid “grounds arising” thereafter. See 42 U.S.C. 

§ 7607(b)(1); Med. Waste Inst. v. EPA, 645 F.3d 420, 427 

(D.C. Cir. 2011). But petitioners are not challenging EPA’s 

decision to adopt the rule in 2007 or retain it in 2010. Rather, 
43

they contend that the provision calling on EPA to set annual 

volumes of biofuels “applicable to refineries, blenders, and 

importers, as appropriate,” requires EPA to reassess each year 

whether the point of obligation set when the agency established 

the program is still “appropriate,” or if EPA should re-assign it 

and restructure the RIN market and other compliance 

infrastructure going forward. See 42 U.S.C. 

§ 7545(o)(3)(B)(ii)(I). That challenge was timely filed within 

60 days of the promulgation of the annual fuel standards. See 

supra Part IV.A.1.

2. Merits

This dispute turns on the roles of two provisions of the 

statute directing the EPA to establish and run a Renewable Fuel 

Program, 42 U.S.C. § 7545(o)—paragraphs (2) and (3). 

Paragraph (2) directs EPA to “promulgate regulations” 

setting up a program to “ensure that transportation fuel sold or 

introduced into commerce in the United States . . . contains at 

least the applicable volume[s] of renewable fuel,” as specified 

in subparagraph (2)(B). Id. § 7545(o)(2)(A)(i). Among the 

parameters Congress required EPA to include were 

“compliance provisions applicable to refineries, blenders, 

distributors, and importers, as appropriate,” to ensure that the 

requirements of paragraph (2), including the applicable volume 

requirements specified in subparagraph (2)(B), are met. Id.

§ 7545(o)(2)(A)(iii)(I), (B). There is no question that EPA has 

authority to set those parameters, including the point of 

obligation, and to adjust them if a change is needed. 

Paragraph (3), in turn, requires EPA to determine and 

publish annual renewable fuel obligations designed to 

“ensure[] that” the applicable volumes specified in paragraph 

(2) are met. Id. § 7545(o)(3)(B)(i). Those renewable fuel 

obligations must: 
44

(I) be applicable to refineries, blenders, and 

importers, as appropriate;

(II) be expressed in terms of a volume percentage 

of transportation fuel sold or introduced into 

commerce in the United States; and 

(III) . . . consist of a single applicable percentage 

that applies to all categories of persons 

specified in subclause (I). 

Id. § 7545(o)(3)(B)(ii)(I)–(III). 

The parties’ dispute centers on the meaning of “as 

appropriate” in subclause (3)(B)(ii)(I). The Coffeyville 

Petitioners contend that the phrase unambiguously requires 

EPA annually to reconsider which parties it is “appropriate” to 

obligate to meet the renewable fuel obligations. EPA responds 

that the statute is, at most, ambiguous as to whether Congress 

expected EPA annually to revisit the obligated-parties 

designation, or whether the agency may generally rely on the 

“appropriate[ness]” finding it made pursuant to its paragraph 

(2) authority. We begin by asking “whether Congress has 

directly spoken to the precise question at issue,” and conclude 

that it has not. Chevron, 467 U.S. at 842.

EPA reads “as appropriate” in paragraph (3) to mean that 

the agency has “discretion” to decide whether, when, and how

to reassess which of three types of industry actors—refineries, 

blenders, and importers—should continue to bear the point of 

obligation, as originally designated in the compliance 

provisions. See EPA Denial, Coffeyville J.A. 779–80. At oral 

argument, the agency conceded that its exercise of this 

discretion is reviewable, so that the exclusion of the point of 

obligation issue from an annual rulemaking could, under other 

circumstances, constitute an abuse of discretion. Rec. of Oral 

Arg. 1:22:22–1:24:00; 1:37:45–1:40:11. 
45

The Coffeyville Petitioners object that the phase 

“applicable . . . as appropriate” means applicable as 

contemporaneously determined to be appropriate in the annual

volumetric rulemakings. Coffeyville Br. 30–33; see also Conc. 

Op. 4–5, 7. But paragraph (3) does not specify when or in what 

context EPA must make its appropriateness determination, nor 

does the phrase “as appropriate” itself specify a particular 

temporal dimension—as between, for example, parties 

appropriately designated in the past (as EPA interprets it) and 

parties now appropriately selected (as Coffeyville insists). The 

term “appropriate” “naturally and traditionally includes 

consideration of all the relevant factors,” Michigan v. EPA, 

135 S. Ct. 2699, 2707 (2015) (quoting White Stallion Energy 

Center, LLC v. EPA, 748 F.3d 1222, 1266 (D.C. Cir. 2014) 

(Kavanaugh, J., concurring in part and dissenting in part)), but 

it does not dictate when that consideration must be made. In 

other words, the requirement that the point of obligation be 

“appropriate” is at most grounds for assessing whether the 

agency adequately explained its policy choices regarding the 

appropriateness determination, not for imposing our own gloss 

on that broad term as a matter of law. See Kisor v. Wilkie, 139 

S. Ct. 2400, 2448–49 (2019) (Kavanaugh, J., concurring in the 

judgment) (“[S]ome cases involve regulations that employ 

broad and open-ended terms like ‘reasonable,’ ‘appropriate,’ 

‘feasible,’ or ‘practicable.’ Those kinds of terms afford 

agencies broad policy discretion, and courts allow an agency to 

reasonably exercise its discretion to choose among the options 

allowed by the text of the rule. But that is more State Farm

than Auer” or Chevron (emphasis added)). Here, as explained 

below, EPA reasonably exercised its discretion, and explained 

its decision, to address the point of obligation issue in a 

separate proceeding from its annual volumetric rulemaking. 

The fact that paragraphs (2) and (3) both include the phrase 

“as appropriate” does not make the Coffeyville Petitioners’ the 
46

only permissible interpretation. Even if, as our colleague 

contends, Conc. Op. 7, the two phrases bear the exact same 

meaning, but see Coffeyville Br. 30–31 (arguing that 

paragraphs (2) and (3) are “worded differently” and have 

“different contexts”), paragraph (3) simply does not dictate 

when or in what context EPA must make the appropriateness 

determination. It is the surrounding context, not the phrases 

themselves, that suggests when EPA might make that choice. 

Unable to point to any express textual requirement that 

EPA annually reconsider the point of obligation, the 

Coffeyville Petitioners contend that, had Congress intended to 

allow EPA in annual volumetric rulemakings to rest on its 

paragraph (2) appropriateness determination, subclause 

(3)(B)(ii)(I) could have more simply cross-referenced 

paragraph (2). But replacing subclause (3)(B)(ii)(I) with a 

simpler cross-reference would not have achieved quite the 

same effect. While refineries, blenders, importers, and 

distributors may all be subject to compliance provisions under 

paragraph (2), paragraph (3)’s applicability provision points to 

a more limited universe of potential obligated parties—to 

refineries, blenders, and importers, but not distributors. That 

supports EPA’s understanding of subclause (3)(B)(ii)(I) as a 

cross-reference that also clarifies a limit on EPA’s options in 

setting the point of obligation. See 72 Fed. Reg. at 23,923/2

(preamble for compliance rule referencing paragraph (3)’s 

applicability provision). 

We are unpersuaded by the suggestion that such limitation 

was so clear even without subclause (3)(B)(ii)(I) that EPA’s 

reading of that applicability provision renders it superfluous. 

The suggestion is that, because distributors do not “introduce” 

fuel into commerce, they could not be obligated parties in any 

event, with or without the applicability provision. Our 

colleague posits that blenders—but not distributors—can in 

fact “introduce” transportation fuel into commerce by blending 
47

gasoline and diesel fuel with other fuels that have not already

been introduced by someone else. Conc. Op. 11. But that 

argument rests on a complicated series of inferences from spare 

statutory text, as well as post-enactment regulations that do not 

necessarily show what the statute must have meant. For 

example, our colleague reasonably infers that the national 

“volume[] of transportation fuel,” 42 U.S.C. § 7545(o)(3)(A), 

must be counted at the first moment each gallon of fuel enters 

commerce, in order to avoid double-counting. But, the statute 

nowhere states the point directly. Still less clearly does the 

statute state our colleague’s corollary—necessary to the 

surplusage argument—that the point of obligation must also be 

placed, if at all, at the first moment a gallon of fuel enters 

commerce. That corollary is less obvious, because the 

statutory link between the point of obligation and entry into 

commerce is not ironclad: All parties agree that not every

gallon of transportation fuel must be subject to the point of 

obligation upon entry into commerce. The statute plainly 

allows EPA to obligate an “appropriate” subset of the three 

categories of parties. And obligating blenders would involve 

double counting unless the transportation fuel they use to create 

blends were not already counted upon its importation or sale to 

them. Under the circumstances, it is reasonable to read 

subclause (3)(B)(ii)(I) as clarifying what is at best a nonobvious inference that distributors cannot be subjected to the 

point of obligation.

So subclause (3)(B)(ii)(I) as EPA reads it is not a 

superfluity, but makes clear that EPA may have permissibly 

placed the point of obligation on refineries, blenders, and 

importers, but not distributors. For the same reason, subclause 

(3)(B)(ii)(III), which requires that the annual standards apply 

“to all categories of persons specified in subclause (I),” id.

§ 7545(o)(3)(B)(ii)(III), does not contain what our colleague 

views as an unnecessary double cross-reference to paragraph 
48

(2), because it, too, is operative in not just cross-referencing, 

but also clarifying a limit on the three permissible targets of its 

“single applicable percentage.”

The thrust of the Coffeyville Petitioners’ retort—that if 

Congress had wanted to confer discretion or provide a limiting 

cross-reference to paragraph (2), it would have said so more 

plainly—applies with greater force against their own reading. 

Had Congress intended EPA to consider on an annual basis 

whether to redo the point of obligation designation—a 

designation that no-one disputes is a necessary cornerstone of 

the paragraph (2) compliance provisions—it knew how to 

impose such a requirement. The Clean Air Act’s provisions on 

ambient air quality, for instance, require EPA to “complete a 

thorough review” of the air quality standards “at five-year 

intervals” and “promulgate such new standards as may be 

appropriate.” Id. § 7409(d)(1). The Act’s provisions 

controlling hazardous air pollutants emitted from major and 

area sources require EPA to “review, and revise as necessary” 

the applicable emission standards “no less often than every 8 

years.” Id. § 7412(d)(6). Paragraph (3) of the RFS program, 

in contrast, does not tell EPA to “complete a thorough review,” 

or “review, and revise as necessary” its point of obligation 

decision—or anything even close. 

To be sure, EPA’s reading is not ineluctable. We do not 

doubt that Congress could have more directly provided that the 

renewable fuel obligations do not apply to distributors. See 

Conc. Op. 8. But, for the reasons discussed, we are 

unconvinced that paragraph (3) plainly requires EPA to 

consider adjusting the point of obligation each year. See 

Valero Energy Corp. v. EPA, No. 7:17-cv-00004-O, 2017 WL 

8780888, at *4 (N.D. Tex. Nov. 28, 2017) (holding that “there 

is no clear statutory mandate . . . obligating [EPA] to evaluate 

or adjust . . . what entities are ‘appropriate[ly]’ forced to 

comply with” the annual renewable fuel obligations 
49

(alterations in original) (quoting 42 U.S.C. 

§ 7545(o)(3)(B)(ii)(I))). Accordingly, we conclude that the 

meaning of “as appropriate” in paragraph (3) is ambiguous and 

turn now to whether EPA’s construction is “based on a 

permissible construction of the statute.” Chevron, 467 U.S. at 

843. 

The difficulty of squaring the Coffeyville Petitioners’ 

reading of “as appropriate” with the structure and purpose of 

the statute convinces us of the reasonableness of EPA’s 

interpretation. As a structural matter, the RFS program 

contains not only “annual” volumetric determinations, Conc. 

Op. 1, but also a slew of compliance provisions that are not 

annually re-determined. As a practical matter, the point of 

obligation is the foundational “compliance provision” of the 

entire renewable fuels program; EPA could not “ensure” that 

applicable volumes of renewable fuels are introduced into the 

nation’s transportation fuel supply without designating the 

parties responsible for carrying the renewable fuel standards 

into operation. Id. § 7545(o)(2)(A)(i). To that end, in writing 

the compliance provisions, EPA placed the renewable fuel 

obligation on the entities at the head of the United States supply 

chain for nonrenewable fuels—domestic refiners, and 

importers of fuel refined elsewhere. See 72 Fed. Reg. at

23,923–24. After additional consideration, EPA in 2010 

adhered to that decision. See 75 Fed. Reg. at 14,721–22 

(codified at 40 C.F.R. § 80.1406(a)(1)); see also Monroe 

Energy, 750 F.3d at 912. No one challenged EPA’s decision 

in 2007 or 2010, and EPA declined to revisit the issue in 

response to comments in the 2017 annual rulemaking urging it 

to shift the 2017 point of obligation to blenders. See Response 

to Comments at 542, Coffeyville J.A. 761. 

The focus of the annual rulemakings, in contrast, is to 

translate the applicable volumes—as specified in paragraph 

(2), or set according to the process there described—into 
50

percentage requirements for each renewable fuel. 42 U.S.C. 

§ 7545(o)(3)(B)(ii). It would be strange indeed if Congress 

required EPA, as it went about its annual quantitative standardsetting duties, also to rethink a choice so basic to the RFS 

program’s architecture. This implausibility is illuminated by 

the fact that Congress required EPA to facilitate statutory 

compliance through a credit trading program, which of 

necessity requires some year-to-year stability. See id. 

§ 7545(o)(5). EPA responded by setting up the RIN system, 

with flexibility anchored to a fixed baseline—the point of 

obligation. The compliance system is flexible in that RINs may

be retired in compliance demonstrations not only in the 

compliance year during which they were generated, but also 

throughout the ensuing compliance year, 40 C.F.R. 

§ 80.1427(a)(6), and obligated parties may carry over excess 

RINs or RIN deficits from year to year, id. § 80.1427(a)(1), 

(5)–(6); see Monroe Energy, 750 F.3d at 913. 

Annual changes to the point of obligation could cause 

“disparities in RIN-holdings,” leaving formerly obligated 

parties with “significantly more RINs, including carryover 

RINs, than they desire or can use” and newly obligated parties 

with “lower balances than they would desire to protect 

themselves against shortfalls in RIN availability or RIN price 

volatility.” EPA Denial at 78, Coffeyville J.A. 850. “[A] 

change to the point of obligation could also cause volatility in 

the [RIN] market,” inhibiting the “ability [of] parties that 

possess excess carryover RINs to recover the cost of the RINs 

they hold by selling them to other parties.” Id. It is not 

plausible that Congress meant EPA to consider uprooting the 

baseline of the RFS program every year. The real stretch is that 

Congress would have imposed such an onerous and potentially 

disruptive duty merely by use of the phrase “as appropriate.” 

The Coffeyville Petitioners’ reading is not made any more 

plausible by highlighting the likelihood that, on annual 
51

consideration of the point of obligation, EPA would only need 

to consider recent information, and likely would stay its course. 

Even if the point of obligation in fact rarely changed, the mere 

“reconsider[ation]” of the framework would “likely cause 

delays to the investments necessary to expand the supply of 

renewable fuels in the United States.” See EPA Denial at 2, 

Coffeyville J.A. 774. EPA reasoned that “fuel[] industry 

participants [would] withhold significant investment decisions 

until the EPA’s final decision and the fallout from the decision

are known.” Id. at 81–82, Coffeyville J.A. 853–54. Insisting 

that the issue be on the regulatory agenda every year would sow 

“significant market uncertainty and potential turmoil” into the 

RFS program without offsetting benefit. Id.

Furthermore, any requirement that an agency repeatedly 

go through a regulatory process on an issue that promises to 

draw a regular parade of criticism from interest groups with 

ample resourcesis itself burdensome. See AT&T Corp. v. FCC, 

220 F.3d 607, 630–31 (D.C. Cir. 2000). This issue is no 

exception. As discussed above, EPA in 2016 and 2017 

considered and decided against reopening its point of 

obligation rule. In so doing, it received upwards of 18,000 

comments and published an exhaustive, 85-page decision. See 

EPA Denial at 1–85, Coffeyville J.A. 771–857. “Given the 

time pressure associated with its annual standards rulemaking,” 

EPA believes it would not be feasible or worthwhile to 

undertake such reconsideration annually. Id. at 7 n.10, 

Coffeyville J.A. 779. Indeed, as EPA acknowledged at oral 

argument, the agency “has been late on [its annual rules] 

before,” even “when [it hasn’t] taken up the point of 

obligation.” Rec. of Oral Arg. 1:25:44–52. “[A]dd[ing] on 

the” duty to reassess the point of obligation annually, EPA tells 

us, “would be a significant burden.” Id. at 1:25:55–1:26:05.

Our colleague doubts that EPA’s year-to-year burden would be 

appreciable, but we see no ground to question EPA’s judgment 
52

to the contrary. It seems unlikely that Congress wrote the 

applicability provision in order to heap that annual duty onto 

EPA’s plate. It seems even less likely given the absence of 

reason to think that yearly second-guessing of program 

fundamentals makes sense, or that, when and if the need for a 

program restructuring arises, EPA would fail to act. Indeed, 

the statute elsewhere explicitly requires EPA to conduct 

“periodic reviews of . . . the feasibility of achieving compliance 

with the [applicable volume] requirements.” 42 U.S.C. § 

7545(o)(11). That provision has not been briefed, but would 

appear to require EPA to reconsider the point of obligation if it 

concluded that its placement was obstructing compliance.

Finally, EPA’s approach coheres with basic principles of 

administrative law. In general, the choice between various 

procedural channels lies within the “informed discretion of the 

administrative agency.” SEC v. Chenery Corp., 332 U.S. 194, 

203 (1947). That discretion properly includes judgments about 

the scope of rulemakings and when to relegate ancillary issues 

to separate proceedings: “Agencies, like legislatures, do not 

generally resolve massive problems in one fell regulatory 

swoop.” Massachusetts, 549 U.S. at 524; see, e.g., Grp. 

Against Smog & Pollution, 665 F.2d at 1292 (“. . . EPA cannot 

soundly be charged with arbitrariness merely because it chose 

a separate rulemaking proceeding as the process for proposing 

a revised standard in lieu of an undertaking to do so in the 

narrower context of the opacity standard proceedings as 

petitioners requested.”). Once the agency has resolved an issue 

in a separate proceeding, it may defend against related criticism 

by “simply refer[ing]” to the other proceeding, so long as the 

“reasoning remains applicable and adequately refutes the 

challenge.” Bechtel v. FCC, 10 F.3d 875, 878 (D.C. Cir. 1993). 

EPA reasonably reads “as appropriate,” in paragraph (3)(B), to 

leave undisturbed these background norms of broad but 

reviewable procedural discretion. 
53

Our holding today does not give EPA the limitless and 

unreviewable discretion feared by our colleague. As we have 

said, EPA’s determination as to whether it is “appropriate” to 

reconsider the point of obligation in the context of an annual 

volumetric rulemaking is reviewable for abuse of discretion. 

EPA did not abuse its discretion in refusing to do so here. 

Indeed, it considered whether to change the point of obligation 

rule in a separate, contemporaneous proceeding that yielded a 

final order that we also have reviewed and found to be 

adequately justified. See supra Part IV.B. We do not address 

whether it would be an abuse of discretion for EPA to refuse to 

reconsider the point of obligation—in an annual volumetric 

rulemaking or otherwise—in extreme circumstances akin to 

those posited by our colleague’s hypothetical about the 

continuing study of an abolished tort. See Conc. Op. 5.

In sum, we hold that EPA permissibly rejected the claim 

that paragraph (3) requires the agency annually to reassess the 

point of obligation in the renewable fuel program. Because 

EPA has no duty to reconsider the appropriateness of its point

of obligation regulation as part of its yearly determination of 

volumetric requirements, it was not arbitrary for EPA to treat 

comments complaining that it obligated the wrong parties as

appropriately assessed in a separate proceeding, and beyond 

the scope of proceedings for the 2017 volumetric rulemaking. 

For these reasons, we deny the Coffeyville Petitioners’ petition. 

B. Cellulosic Biofuel Projection

The Coffeyville Petitioners lob a variety of challenges at 

EPA’s cellulosic biofuel projection for 2017. Many of these 

petitioners, however, raised many of the same arguments 

before. See ACE, 864 F.3d at 727–29 (addressing challenges 

to EPA’s 2014–16 projection). We rejected those arguments 

once—and do so again.
54

First, the Coffeyville Petitioners contend that “EPA’s 

[m]ethodology” for projecting cellulosic biofuel production is 

invalid because it “[c]hronically [o]verestimates [a]ctual 

[p]roduction.” Coffeyville Br. 40. But that argument—that 

EPA has “repeatedly . . . overshot the mark,” id. at 41—doesn’t 

apply to the methodology EPA actually used here, as we found 

in ACE, 864 F.3d at 727–28. As we explained when petitioners 

deployed this same argument in challenging the 2014–16 

projection, “the majority of EPA’s prior overestimations” 

utilized a different methodology—one that we rejected in API, 

706 F.3d at 478–81, and that the EPA accordingly abandoned. 

ACE, 864 F.3d at 727. The new methodology—the one EPA 

used here—has been applied only twice before. At the time 

EPA made its final evaluation for 2017, that methodology had 

(as detailed in the table below) undershot for 2015 and overshot

for 2016. See Assessment of the Accuracy of Cellulosic 

Biofuel Production Projections in 2015 and 2016, EPA-HQOAR-2016-0004-3687, at 1–4 (Dec. 12, 2016), Coffeyville 

J.A. 515–18. This is hardly a pattern of chronic overestimation.

RFS 

Compliance 

Year

EPA 

Estimate

(millions of 

RINs)

Actual 

Production

(millions of 

RINs)

EPA 

Error **

Record 

Citation

2015

Q1

[No Data in the Record] Q2

Q3

Q4 35.00 53.36 - 34.4% J.A. 515

2016

Q1

230.00 198.39* + 15.9% J.A. 

516–17

Q2

Q3

Q4
55

* At the time of EPA’s assessment, the agency had actual RIN 

production data for only the first nine months of 2016 (123.99 million 

gallons). To calculate actual production for the year, EPA extrapolated the 

likely RIN generation for the last three months of the year based on the 

historical relation (a multiple of 1.8) between the average quarterly 

generation in the first three quarters and that of the last quarter, yielding a 

figure of 74.39 million RINs for the last quarter. See Coffeyville J.A. 516–

17. 

** The EPA error has been calculated as the difference between the 

EPA estimate and actual production, divided by the actual production. 

Second, the Coffeyville Petitioners claim that EPA failed 

to generate a projection “based on” the cellulosic biofuel 

estimate provided by the Energy Information Administration 

(EIA), as required by statute. 42 U.S.C. § 7545(o)(7)(D)(i). 

That is so, they say, because 96% of EPA’s projected volume 

was biogas, a type of cellulosic biofuel that EIA did not include 

in its estimate. See Coffeyville Br. 43–44. The problem for 

petitioners, however, is that this closely parallels an argument 

we rejected in ACE: “[W]e do not agree that EPA failed to 

generate projections ‘based on’ the [EIA’s] estimates,” even 

though those “estimates did not contain figures for [biogas] 

production—production that accounts for the vast majority of 

cellulosic biofuel” (“around 90 percent”). ACE, 864 F.3d at 

724, 729. Here, as there, EPA showed sufficient “respect” for 

EIA’s estimates. Id. at 729. When limited to fuels actually 

analyzed by EIA, EPA’s estimates were “very similar” to 

EIA’s, id.; see 2017 Rule, 81 Fed. Reg. at 89,758/1, a fact that 

the Coffeyville Petitioners do not contest. 

Congress demanded no more. Nothing in the statute 

required EPA to, as the Coffeyville Petitioners insist, “work[] 

with the EIA to develop information” about biogas. 

Coffeyville Br. 44. “[T]he Administrator of the Energy 

Information Administration shall provide . . . an estimate,” 42 

U.S.C. § 7545(o)(3)(A), and EPA shall “respect” it, API, 706 
56

F.3d at 478. That’s it. In showing such respect, EPA, of 

course, must “understand how EIA derived” its estimate. 

Coffeyville Reply Br. 24. But, contrary to the Coffeyville 

Petitioners’ contention, EPA did just that. The agency 

identified the types of cellulosic biofuels that EIA considered 

and then, to test the integrity of its projection, conducted an 

apples-to-apples comparison, “limiting the scope of [its] 

projection to the companies assessed by EIA.” See 2017 Rule, 

81 Fed. Reg. at 89,757–58. Nothing more was required.

Third, the Coffeyville Petitioners object that EPA relied on 

“information from the [biogas] industry”—an industry “with a 

direct financial interest in the outcome of the rule.” Coffeyville

Br. 45. The Petitioners characterize this as “reliance on 

undisclosed information.” Id. But EPA did disclose the 

information from the biogas industry—and that the information 

came from that industry; it just did so in the aggregate. See

October 2016 Assessment of Cellulosic Biofuel Production 

from Biogas (2017), EPA-HQ-OAR-2016-0004-3711, at 2–6 

(Dec. 12, 2016), Coffeyville J.A. 536–40. All the agency 

withheld was company-specific information, claiming that it 

had to withhold such data as confidential business information, 

see id. at 7, Coffeyville J.A. 541; see also 40 C.F.R. § 2.211(b), 

a claim that petitioners never even attempt to rebut, see Masias 

v. EPA, 906 F.3d 1069, 1077 (D.C. Cir. 2018) (“It is not enough 

merely to mention a possible argument in the most skeletal 

way, leaving the court to do counsel’s work . . . .” (quoting 

Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 

2005))). 

As for the implication of bias, we have previously upheld 

EPA’s reliance on “biofuel producers’ own forecasts.” ACE, 

864 F.3d at 728; see also API, 706 F.3d at 478 (recognizing 

that producers are an “almost inevitable source of 

information”). Here, as in ACE, EPA did not “blindly adopt[] 
57

the facilities’ own forecasts”; it “performed its own 

investigation.” 864 F.3d at 728; see October 2016 Assessment 

of Cellulosic Biofuel Production from Biogas, supra, at 4, 

Coffeyville J.A. 538 (“To verify the reasonableness of these 

projections, EPA compared the projected volume from each 

registered facility to the registered capacity of that facility.”). 

Petitioners point to no unreasonable step by EPA in its efforts 

to address “the uncertainty and unreliability identified by the 

[Coffeyville] Petitioners.” ACE, 864 F.3d at 728.

Fourth, the Coffeyville Petitioners protest EPA’s reliance 

on “facilities’ actual production in prior years” as a floor for 

projecting future cellulosic biofuel production. Coffeyville Br. 

46. This was error, they say, because some companies might 

cease production. Perhaps so. But, as we said in ACE, 

although unforeseen issues “could prevent a producer from 

meeting” its prior year’s production, it was “reasonable” for 

EPA to expect, as a general matter, “that a company’s output 

would grow year-over-year as the company gained 

experience.” 864 F.3d at 728. This seems especially true in an 

industry with the government’s wind surging at its back. And 

even were EPA’s assumption not true for each company, any 

one facility’s shortfall, EPA explained, could be “off-set” by 

new facilities coming online or existing facilities exceeding the 

high end of their projected production range. See Renewable 

Fuel Standard Program—Standards for 2017 and BiomassBased Diesel Volume for 2018: Response to Comments, EPAHQ-OAR-2016-0004-3753, at 444 (Dec. 12, 2016), 

Coffeyville J.A. 707. This explanation fulfills EPA’s “duty to 

articulate a ‘reasonable and reasonably explained’ approach to 

setting the low end of the production ranges.” ACE, 864 F.3d 

at 729 (quoting Comtys. for a Better Env’t v. EPA, 748 F.3d 

333, 335 (D.C. Cir. 2014)).
58

Fifth, the Coffeyville Petitioners complain that EPA 

should have based its cellulosic biofuel projections on “actual” 

prior production. Coffeyville Br. 47. But this backward 

looking approach would have, in EPA’s view, “ignore[d] the 

potential for facilities . . . to increase their fuel production 

rates” and would have been “inappropriately conservative” in 

light of the “year-over-year increases” that EPA had observed 

“in recent years.” 2017 Rule, 81 Fed. Reg. at 89,761/1. We 

cannot say that in rejecting such an approach EPA violated “its 

duty to take a ‘neutral aim at accuracy.’” ACE, 864 F.3d at 727 

(quoting API, 706 F.3d at 476). 

For these reasons, we reject the Coffeyville Petitioners’ 

challenges to EPA’s cellulosic biofuel projection for 2017. See

ACE, 864 F.3d at 729.

C. Cellulosic Waiver

The Coffeyville Petitioners also challenge EPA’s decision 

to use less than all of its discretionary cellulosic waiver 

authority to lower the 2017 requirements for advanced biofuel 

and total renewable fuel. Having reduced the 2017 cellulosic 

biofuel requirement by 5.189 billion gallons, EPA had 

authority to reduce the advanced biofuel and total renewable 

fuel requirements “by the same or a lesser volume.” 42 U.S.C. 

§ 7545(o)(7)(D)(i). To decide by how much to reduce these 

statutory requirements, EPA first determines what reduction in 

the advanced biofuel requirement will yield a “reasonably 

attainable” volume, and it then mechanically applies an 

equivalent reduction to the total renewable fuel volume. 2017 

Rule, 81 Fed. Reg. at 89,752–53. Petitioners do not directly

challenge this methodology. Instead, they argue that EPA 

applied it arbitrarily in deciding to waive only 4.719 billion 

gallons of the advanced biofuel volume for 2017, rather than 

the maximum available waiver of 5.189 billion gallons. We 
59

again reject some of their arguments as foreclosed by precedent 

and others on their own terms.

First, the Coffeyville Petitioners argue that EPA sought to 

justify its 2017 advanced biofuel volume in part by making an 

impermissible comparison to the statutory volume set by 

Congress for 2022. In response to a comment expressing 

concerns about utilization of non-cellulosic advanced biofuels 

(which could be food-based) and possible adverse effects on 

food availability, EPA noted that its “reasonably attainable” 

non-cellulosic advanced biofuel volume for 2017 

(approximately 4 billion gallons) was “somewhat higher than 

the level envisioned in the statute for 2017” (3.5 billion), “but 

well below the level of such fuels Congress expected would be 

used by 2022” (5 billion). Response to Comments at 214, 

Coffeyville J.A. 689. According to petitioners, “by comparing 

2017 volumes with 2022 statutory targets, EPA departed from 

Congress’s intent.” Coffeyville Br. 50.

However, nothing in the statute forbids EPA from taking 

account of future statutory volumes in this way. Although 

Congress specified presumptively applicable volumes for 

certain years, it also provided waiver authority to depart from 

those volumes. Indeed, the discretionary waiver provision 

necessarily empowers EPA to depart upward from the statutory 

level of non-cellulosic advanced biofuel for a given year: 

reducing the advanced biofuel volume by less than the 

reduction in cellulosic biofuel, as section 7545(o)(7)(D)(i) 

permits, is mathematically equivalent to increasing the volume 

of non-cellulosic advanced biofuels, to “partially backfill for 

missing cellulosic biofuel.” 2017 Rule, 81 Fed. Reg. at 

89,763/1. As we have noted, the cellulosic waiver provision 

“grants EPA ‘broad discretion’ to consider a variety of factors” 

in exercising this authority to depart from the presumptive 

statutory volumes. ACE, 864 F.3d at 733 (quoting Monroe 
60

Energy, 750 F.3d at 915). In this case, while deflecting a 

comment about food availability, EPA observed that its noncellulosic advanced biofuel volume for 2017—while higher 

than the statutory volume envisioned for that year—was lower 

than the presumptive statutory volume for the near future. And 

it then reasonably concluded that this “somewhat higher 

interim volume reflect[ed] [its] assessment that it is appropriate 

to allow non-cellulosic advanced biofuels to partially backfill 

for missing cellulosic volumes in light of the associated 

[greenhouse gas] and energy security benefits.” Response to 

Comments at 214, Coffeyville J.A. 689.

Second, the Coffeyville Petitioners argue that EPA failed 

to explain its estimate of reasonably attainable 2017 imports of 

sugarcane ethanol, a type of non-cellulosic advanced biofuel. 

Sugarcane ethanol imports have varied greatly from year to 

year, reaching a high of 681 million gallons in 2006 but falling 

to 64 million gallons in 2014 and 89 million gallons in 2015. 

See 2017 Rule, 81 Fed. Reg. at 89,764. At the time of the 2017 

Rule, EPA expected only 76 million gallons to be imported in 

2016, but it nonetheless adhered to its proposed estimate of 200 

million gallons for 2017—an estimate originally based on 

EPA’s judgment that circumstances in 2017 were “not . . . 

significantly different” from circumstances in 2016, for which 

EPA had also projected 200 million gallons. Id. at 89,763/3. 

EPA acknowledged the “recent low import levels,” but also 

cited “the difficulty in precisely identifying the reasons” for the 

historical “high variability,” given “uncertainty” as to market 

factors including “ongoing growth in gasoline demand in 

Brazil, and competing world demand for sugar.” Id. at 89,764–

65. The agency accordingly reaffirmed that 200 million 

gallons “reflects a reasonable intermediate point between the 

lower levels imported recently and the considerably higher 

levels that have been achieved in earlier years.” Id. at 89,765/2.
61

There is some force to petitioners’ objection to EPA’s 

adherence to an estimate well over double the actual imports in 

the three preceding years. However, our review is “particularly 

deferential in matters implicating predictive judgments.” 

Music Choice v. Copyright Royalty Bd., 774 F.3d 1000, 1015 

(D.C. Cir. 2014) (quoting Rural Cellular Ass’n v. FCC, 588 

F.3d 1095, 1105 (D.C. Cir. 2009)). We accordingly upheld 

EPA’s identical 2016 sugarcane ethanol estimate as 

“reasonable and reasonably explained” in ACE, 864 F.3d at 736 

(quotation marks omitted). In that case, we held that EPA 

reasonably “concluded that ‘a somewhat lower level of imports 

will occur than the historic average’ of 300 million,” based on 

a similar analysis of market factors. Id. (quoting 2014–16 

Rule, 80 Fed. Reg. at 77,478/2). Here, we cannot say that one 

more year of low imports made it arbitrary for EPA to adhere 

to that same projection for 2017.

Third, the Coffeyville Petitioners object to EPA’s analysis 

of supply and demand for regular gasoline (E0) and gasoline 

with added ethanol (E15 and E85). However, this analysis 

played no role in EPA’s exercise of its discretionary cellulosic 

waiver authority under section 7545(o)(7)(D)(i). As noted 

above, EPA’s exercise of that authority rested entirely on its 

determination of reasonably attainable advanced biofuel 

volumes. See 2017 Rule, 81 Fed. Reg. at 89,773–74. The

disputed analysis of E0, E15, and E85 supported EPA’s 

separate decision not to invoke its “general waiver” authority, 

under section 7545(o)(7)(A)(ii), based on “inadequate 

domestic supply.” See generally ACE, 864 F.3d at 705–13. 

But in their opening brief, petitioners failed to challenge EPA’s 

decision not to invoke that separate waiver provision for 2017. 

Although their reply brief gestures at this point, “an argument 

first made in a reply brief is forfeited.” Bartko v. SEC, 845 

F.3d 1217, 1225 n.7 (D.C. Cir. 2017).
62

Finally, the Coffeyville Petitioners take issue with EPA’s 

response to various comments. We have considered these 

arguments and find them to be without merit.

For these reasons, we reject the Coffeyville Petitioners’ 

challenges to EPA’s exercise of its discretionary cellulosic 

waiver authority to reduce advanced biofuel and total 

renewable fuel volumes for 2017.

VI. 2018 Volume for Biomass-Based Diesel

Since 2012, EPA, acting in coordination with the 

Secretaries of Energy and Agriculture, has calculated the 

annual applicable volume (also known as the “volume 

requirement”) for biomass-based diesel based on a holistic, 

backward- and forward-looking consideration of relevant 

factors. In particular, it has set the volume requirement “based 

on a review of the implementation of the program during 

calendar years specified in the tables, and an analysis of” six 

statutorily enumerated factors: (1) “the impact of the 

production and use of renewable fuels on the environment”; (2) 

“the impact of renewable fuels on the energy security of the 

United States”; (3) “the expected annual rate of future 

commercial production of renewable fuels, including advanced 

biofuels in each category (cellulosic biofuel and biomass-based 

diesel)”; (4) “the impact of renewable fuels on the 

infrastructure of the United States”; (5) “the impact of the use 

of renewable fuels on the cost to consumers of transportation 

fuel and on the cost to transport goods”; and (6) “the impact of 

the use of renewable fuels on other factors, including job 

creation, the price and supply of agricultural commodities, 

rural economic development, and food prices.” 42 U.S.C.

§ 7545(o)(2)(B)(ii)(I)–(VI).

EPA set the 2018 applicable volume for biomass-based 

diesel at 2.1 billion gallons, up from 2.0 billion gallons in 2017, 
63

and 1.1 billion gallons above a statutory minimum that 

Congress set to plateau at 1 billion gallons as of 2012. 2017 

Rule, 81 Fed. Reg. at 89,798/1; see 42 U.S.C. 

§ 7545(o)(2)(B)(i)(IV), (v). NBB had asked EPA to set the 

biomass-based diesel volume at 2.5 billion gallons, and now 

challenges the volume EPA set as arbitrary and capricious and 

contrary to the Clean Air Act. 

A. NBB’s Standing 

Before considering the merits of NBB’s claims, we must 

satisfy ourselves that NBB has standing to assert them. 

Respondent-Intervenors, the American Fuel & Petrochemical 

Manufacturers and the American Petroleum Institute, contend 

that NBB lacks standing because, they say, it has not shown 

that the 2017 Rule inflicted a cognizable injury on any of its 

members. 

NBB has associational standing here for the same reasons 

we held it did in National Biodiesel Board v. EPA, 843 F.3d 

1010, 1015 (D.C. Cir. 2016) (NBB v. EPA), where EPA’s 

actions “incentivize[d] . . . compet[ition] with [NBB’s 

members’] domestic production.” Here, too, NBB’s members 

“compete with” the other industry players EPA’s rule is 

designed to affect. Id. at 1016. Recall that biomass-based 

diesel is a nested subset of advanced and total renewable fuels, 

such that NBB’s members get (1) a market for compelled 

buyers of the specified volume of biomass-based diesel, for 

which they are the exclusive suppliers, plus (2) a market for 

compelled buyers of advanced and other renewable fuels

alongside a broad array of competing suppliers. See supra at 

6–8, 11. The 2017 Rule preamble explains that biomass-based 

diesel “compet[es] for research and development dollars with 

other types of advanced biofuels,” and that, “[b]y establishing 

[the biomass-based diesel] volume requirement[] at [a] level[]
64

lower than . . . the expected production of [biomass-based 

diesel],” EPA was “creating the potential for some competition 

between [biomass-based diesel] and other advanced biofuels to 

satisfy the advanced biofuel” applicable volume and providing 

“incentives for the continued development of” those 

competitors’ fuels. 81 Fed. Reg. at 89,797; see also EPA 

Coffeyville Br. 24 (“Above 2.1 billion gallons, biomass-based 

diesel will have to compete with other types of advanced

biofuel.”). Such competition will likely “temper to some extent 

[biomass-based diesel] prices.” Final Statutory Factors 

Assessment for the 2018 Biomass Based Diesel (BBD) 

Applicable Volume, EPA-HQ-OAR-2016-0004-3708, at 10 

(Dec. 12, 2016) (Supplemental Assessment), Coffeyville J.A. 

533. That is a cognizable injury to NBB’s members. See NBB 

v. EPA, 843 F.3d at 1015–16; see also Delta Constr. Co. v. 

EPA, 783 F.3d 1291, 1299 (D.C. Cir. 2015) (per curiam).

Though NBB failed to identify any of its members—

ordinarily a prerequisite for organizations alleging 

associational standing, see Summers v. Earth Island Inst., 555 

U.S. 488, 497–98 (2009)—that omission is not fatal here 

because NBB’s members comprise “the entire biomass-based 

diesel category of the Renewable Fuel Standard[s]” and 

represent no other interests. Coffeyville J.A. 134. Consistent 

with “the real purpose of the [standing] inquiry—that is, for the 

court to be satisfied that the requisite injury really has occurred 

or will occur in the future to members of the organization[],” 

Pub. Citizen v. FTC, 869 F.2d 1541, 1552 (D.C. Cir. 1989), 

there is no need to identify injured members when “all the 

members of the organization are affected by the challenged 

activity,” Summers, 555 U.S. at 499 (citing NAACP v. Ala. ex 

rel. Patterson, 357 U.S. 449, 459 (1958)). Because EPA’s rule 

subjects the biomass-based diesel industry to increased 

competition, with anticipated pricing effects, NBB “meet[s] the 
65

constitutional prerequisites of injury, causation, and 

redressability.” NBB v. EPA, 843 F.3d at 1015.

B. Merits of NBB’s Challenges

NBB advances two challenges to the applicable volume 

EPA set for biomass-based diesel: First, that EPA erred in 

considering the interaction of biomass-based diesel with the 

yet-to-be established 2018 advanced biofuel applicable 

volume, and second, that EPA’s consideration of the six 

statutory factors was arbitrary and capricious and contrary to 

law. We reject both claims. 

First, EPA reasonably chose a 2018 biomass-based diesel 

applicable volume that would “maintain[] support for growth 

in [biomass-based diesel] volumes” while also encouraging the 

“development of other advanced biofuels.” 2017 Rule, 81 Fed. 

Reg. at 89,798/1. Congress directed EPA to consider the 

lessons learned from its retrospective “review” of the program, 

apply them in its prospective “analysis of” the six statutory 

factors, and set a biomass-based diesel volume that will apply 

fourteen months in the future. See 42 U.S.C. 

§ 7545(o)(2)(B)(ii). 

EPA’s approach is consistent with the structure and 

purposes of the statute. Congress set a minimum applicable 

volume for biomass-based diesel of one billion gallons for each 

year from 2012 forward, id. § 7545(o)(2)(B)(i)(IV), (v), while 

specifying statutory minimum volumes for the advanced 

biofuel category containing biomass-based diesel that grow 

year by year to 21 billion gallons by 2022, id. 

§ 7545(o)(2)(B)(i)(II), (iii). EPA reasonably concluded that, 

by nesting biomass-based diesel together with cellulosic (and 

other unspecified) biofuels within the advanced biofuel 

category, and specifically charting a higher, steeper, and longer 

initial growth curve for advanced biofuel, Congress anticipated 
66

that production of other types of advanced biofuels could step 

up to help meet the advanced biofuel volume requirement. See 

2017 Rule, 81 Fed. Reg. at 89,797/1. EPA also reasonably 

concluded that increasing fuel diversity serves one of 

Congress’s primary goals in establishing the Renewable Fuel 

Standards program: improving the nation’s “energy 

independence and security.” See Pub. L. No. 110-140, 

preamble; see also 2017 Rule, 81 Fed. Reg. at 89,798/3. EPA 

also reasonably anticipated that enhanced competition in the 

advanced biofuels market would help “temper to some extent 

[biomass-based diesel] prices,” Supplemental Assessment 10, 

Coffeyville J.A. 533, thereby ameliorating Congress’s concern 

that, with a too-high target volume, the “price of biomass-based 

diesel fuel” would “increase significantly,” 42 U.S.C. 

§ 7545(o)(7)(E)(ii). And fuel diversity may produce 

environmental benefits insofar as certain advanced biofuels, 

such as ethanol from food waste, will “likely have significantly 

lower impacts on wetlands, ecosystems, and wildlife habitats”

than would greater reliance on biomass-based diesel. 

Supplemental Assessment 6, Coffeyville J.A. 529. 

NBB’s arguments to the contrary turn on reading the 

statutory directive that EPA “review . . . the implementation of 

the program during calendar years specified in the tables,” id.

§ 7545(o)(2)(B)(ii), to confine EPA’s consideration to 

biomass-based diesel’s statutory volumes and actual 

performance, and to prevent EPA from considering other fuel 

categories or future years. In particular, NBB takes issue with 

EPA’s consideration of the not-yet-finalized 2018 advanced 

biofuel applicable volume, which NBB contends led EPA to 

set the biomass-based diesel volume too low. 

NBB’s objections are not supported by the text or purpose 

of the statute. Assuming NBB is right that EPA’s “review of 

the implementation of the program” consists of a retrospective 
67

assessment, the agency must also conduct “an analysis of” six 

statutory factors. Id. § 7545(o)(2)(B)(ii). And those factors 

plainly require a prospective assessment—an assessment that 

would likely miss “important aspects of the problem,” State 

Farm, 463 U.S. at 43, if it ignored the interaction, now and in 

the future, of the requirements for all the categories of 

renewable fuels. See, e.g., 42 U.S.C. § 7545(o)(2)(B)(ii)(I) 

(requiring an “analysis of” the “impact of the production and 

use of renewable fuels on,” among other things, “the 

environment”). Though EPA set the biomass-based diesel 

requirement lower than NBB wished, Congress did not intend 

to incentivize growth of biomass-based diesel “at all costs.” 

ACE, 864 F.3d at 714 (quoting Am. Express Co. v. Italian 

Colors Rest., 570 U.S. 228, 234 (2013)). 

NBB objects that setting the 2018 biomass-based diesel 

applicable volume below expected production might lead to a 

depressed advanced biofuel volume for 2018. But the agency 

specifically anticipated “that the 2018 advanced biofuel 

requirement will be larger than the 2017 advanced biofuel 

volume requirement.” 2017 Rule, 81 Fed. Reg. at 89,798/1. 

EPA has never set the biomass-based diesel applicable volume 

at the “maximum potential production” level, id. at 89,799/3, 

yet the “growing supply of” biomass-based diesel has 

consistently “allowed EPA to establish higher advanced 

biofuel” applicable volumes, id. at 89,797/3. EPA opted for 

“allowing room within the advanced biofuel volume 

requirement for the participation of non-[biomass-based diesel] 

advanced fuels” as a reasonable way “to encourage the 

development and production of a variety of advanced biofuels 

over the long term without reducing the incentive for [biomassbased diesel] beyond the [biomass-based diesel applicable 

volume] in 2018.” Id. at 89,797–98. 
68

Second, in setting the 2018 biomass-based diesel 

applicable volume, EPA reasonably compared the advantages 

and disadvantages of biomass-based diesel to those of other 

fuels. NBB contends that the statute confines EPA to assessing 

advantages of biomass-based diesel over petroleum, not 

considering other renewable fuels, and that the agency failed to 

“meaningfully” consider the six factors. NBB Br. 9–10. Both 

arguments miss the mark. 

NBB suggests that, because the statute “was intended to 

‘increase the production of clean renewable fuels’ as a 

substitute for petroleum fuel,” id. at 21 (quoting Pub. L. No. 

110-140, preamble), the only relevant comparison is to 

petroleum, not to other categories of renewable fuel. But NBB 

identifies nothing in section 7545(o)(2)(B)(ii) or any other 

section that requires EPA to assess the performance of a 

particular renewable solely by reference to petroleum fuel. Its 

analysis would require us to read the term “renewable fuels” 

used throughout section 7545(o)(2)(B)(ii) to refer to the single 

renewable fuel being analyzed, even though the statutory 

definition of “renewable fuel” includes all types of renewables. 

See 42 U.S.C. § 7545(o)(1)(J). And if EPA could compare the 

benefits of each specific fuel only to petroleum, it might be 

unable to set rational applicable volumes for each specified 

category of renewable fuel after 2022, when the statute no 

longer sets any specific volumes. See id. § 7545(o)(2)(B)(iii)–

(v). EPA could easily conclude, for example, that each 

renewable fuel had a lower “impact . . . on the environment” 

than petroleum fuel, see id. § 7545(o)(2)(B)(ii)(I), but, no 

matter their differing merits in serving the statute’s goals, the 

agency would be barred from making relative judgments 

among renewable fuel categories.

NBB also argues that EPA failed to give meaningful 

consideration to the six statutory factors, and instead “pre-
69

determined the outcome,” NBB Br. 20, but the record shows 

otherwise. EPA considered in detail how setting the biomassbased diesel applicable volume at a level higher or lower than 

2.1 billion gallons would affect the six statutory factors. See 

2017 Rule, 81 Fed. Reg. at 89,798–99. EPA further elaborated 

its analysis of the factors in an 11-page supplemental 

memorandum evaluating effects of its proposed biomass-based 

diesel volume on renewable fuel production rates, the 

environment, and the economy. See Supplemental Assessment 

1–11, Coffeyville J.A. 524–34. EPA concluded that, over the 

long term, “[a] variety of different types of advanced biofuels, 

rather than a single type such as [biomass-based diesel], would 

positively impact energy security . . . and increase the 

likelihood of the development of lower cost advanced biofuels 

that meet the same [greenhouse gas] reduction threshold as 

[biomass-based diesel].” Supplemental Assessment 3, 

Coffeyville J.A. 526. EPA thus concluded that the statutory 

factors supported its biomass-based diesel applicable volume. 

See 2017 Rule, 81 Fed. Reg. at 89,798/3.

At bottom, NBB’s objections rest on a policy 

disagreement: NBB urges that, instead of setting a level that 

would support continued investment in the biomass-based 

diesel industry while also encouraging producers of other types 

of advanced biofuel to compete to satisfy the 2018 advanced 

biofuel applicable volume at lower cost, EPA should have 

reserved to biomass-based diesel alone a volume nearer to that 

industry’s maximum production potential. But NBB’s 

proposed “simple solution”—that EPA should have “set[] a 

meaningful [biomass-based diesel] volume” while planning to 

“increas[e] the 2018 advanced-biofuel volume to provide room 

for the production of other advanced biofuels when it set that 

volume a year later,” NBB Br. 23—describes what EPA 

actually did. A mere disagreement with the particular 

calibration of a line drawn in the exercise of an agency’s 
70

reasonable judgment is no basis to invalidate a rule. Therefore, 

we deny NBB’s petition. 

VII. Conclusion

For these reasons, the petitions for review are denied.

So ordered.
WILLIAMS, Senior Circuit Judge, concurring in part and 

concurring in the judgment:

The Clean Air Act’s Renewable Fuel Program operates on 

an annual cycle. It provides annual credits, authorizes annual 

waivers, and calls for annual reviews, see, e.g., 42 U.S.C. 

§ 7545(o)(5), (7), (10)—all to implement Congress’s annual 

goals, see id. § 7545(o)(2)(B). 

Each year, as part of this annual affair, the Environmental 

Protection Agency embarks on an elaborate rulemaking. Id. 

§ 7545(o)(3)(B). In doing so, it receives an annual estimate of 

the total volume of fuel to be sold to inform it in setting the 

annual “renewable fuel obligation,” id. § 7545(o)(B)(i), which 

“shall . . . be applicable to refineries, blenders, and importers, 

as appropriate,” id. § 7545(o)(3)(B)(ii)(I). So EPA is to specify 

appropriateness among those three categories. But 

“appropriate” as of when? 

Coffeyville Petitioners say appropriate as of the annual 

rulemaking.

But EPA says appropriate as of the last time EPA happened 

to consider the issue, no matter how many years earlier that 

was. The initial determination sticks for “all years,” EPA says, 

“unless and until” EPA chooses, in its “discretion,” to 

“undertake [an] annual reevaluation[].” Denial of Petitions for 

Rulemaking to Change the RFS Point of Obligation, EPA-HQOAR-2016-0544-0525, at 7 (Mar. 13, 2018) (“EPA Denial”), 

J.A. 779; see also EPA Br. 66 (claiming “discretion” to decide 

“whether, how, and when” it will “reconsider its initial 

designation”). Even when affected parties point to a series of 

market “disparities” that they say have developed and render 

the earlier determination “not appropriate,” and point to 

§ 7545(o)(3)(B)(ii)(I) as entitling them to a fresh 

determination, see, e.g., Valero Energy Corporation 
2

Comments, EPA-HQ-OAR-2016-0004-1746, at 1, 14 (July 11, 

2016), J.A. 138, 151, EPA claims that that section does nothing 

of the sort, see EPA Denial at 8, J.A. 780 (asserting full 

“discretion” to decide “when” and “under what circumstances” 

it will consider the issue). In Part V.A of the court’s opinion, 

my colleagues accept EPA’s theory. I, however, disagree. So 

while I otherwise join the court’s opinion in full, I cannot joint 

Part V.A—though I do, in the end, concur in the judgment.

* * *

At the risk of oversimplifying, we can boil this annual 

process down to three steps.

First, the annual goal. Congress sets annual (steadily 

increasing) goals for the volume of renewable transportation 

fuel to be sold or introduced into commerce in the United 

States, with special targets for some subsets of renewable fuel. 

42 U.S.C. § 7545(o)(2)(B)(i).

Next, the annual estimate. The Energy Information 

Administration projects the total volume of transportation fuel 

that will be sold into commerce in a given year (as well as 

volumes of biomass-based diesel and cellulosic biofuel). 42 

U.S.C. § 7545(o)(3)(A); see, e.g., Letter from Adam Sieminski, 

Administrator, U.S. Energy Information Administration, to 

Gina McCarthy, Administrator, U.S. Environmental Protection 

Agency, EPA-HQ-OAR-2016-0004-3646 (Oct. 19, 2016), J.A. 

494.

Finally, the annual obligation. This is set by EPA during 

the agency’s annual rulemaking. And it is expressed in terms 

of a single percentage of transportation fuel sold into commerce

(the “renewable fuel obligation”) by any obligated party

(regardless of category). 42 U.S.C. § 7545(o)(3)(B)(ii); see, 

e.g., Renewable Fuel Standard Program: Standards for 2017 
3

and Biomass-Based Diesel Volume for 2018, 81 Fed. Reg. 

89,746, 89,751/3 (Dec. 12, 2016) (“2017 Rule”). The basic 

idea is this: If EPA knows (i) the annual goal for the volume of 

renewable fuel introduced into commerce (see step one above), 

and (ii) the annual estimate for the total volume of fuel to be 

introduced into commerce (see step two above), then EPA—

after filling in any gaps in the goals left by Congress, see 42 

U.S.C. § 7545(o)(2)(B)(ii), and making any necessary 

adjustments to the estimates provided by the Energy 

Information Administration, see id. § 7545(o)(3)(A)—can set 

the minimum percentage of renewable fuel that must be 

introduced into commerce by “obligated parties.” If everything 

works out well, Congress’s annual goal should, more or less, 

be met. 

But who are these “obligated parties”? Under the Act, 

EPA must tell us. The first among the three “Required 

elements” of the annual determination is that it “be applicable 

to refineries, blenders, and importers, as appropriate.” 42 

U.S.C. § 7545(o)(3)(B)(ii)(I) (emphasis added).

Even though EPA “determine[s] and publish[es]” the 

annual obligation anew “[e]ach [] calendar year[],” 42 U.S.C. 

§ 7545(o)(3)(B)(i), since 2010 it hasn’t considered what parties 

are “appropriate” to obligate. Regulation of Rules and Fuel 

Additives, 75 Fed. Reg. 14,670, 14,722 (Mar. 26, 2010); see 

also Regulation of Fuels and Fuel Additives, 72 Fed. Reg. 

23,900, 23,923/2 (May 1, 2007). Rather, year in and year out, 

the agency has simply “indicated,” “in passing,” that the 

renewable fuel obligation “would apply to ‘. . . producers and 

importers,’” “consistent with [its] preexisting” determination. 

EPA Br. 69–70 (quoting 2017 Rule, 81 Fed. Reg. at 89,746/2). 

That’s it. In my view, however, the language of the statute 

requires more. EPA’s contrary reading seems to me to go 

unreasonably “beyond the meaning that the statute can bear.” 

U.S. Postal Serv. v. Postal Regulatory Comm’n, 886 F.3d 1253, 
4

1255 (D.C. Cir. 2018) (quoting MCI Telecomm. Corp. v. AT&T 

Co., 512 U.S. 218, 229 (1994)).

* * *

The key provision says, “[n]ot later than November 30 of 

each [] calendar year[],” EPA “shall determine and publish in 

the Federal Register . . . the renewable fuel obligation.” 42 

U.S.C. § 7545(o)(3)(B)(i). The first of the “Required 

elements” of that annual obligation is that it shall “be applicable 

to refineries, blenders, and importers, as appropriate.” Id.

§ 7545(o)(3)(B)(ii)(I).

This much tells us a few things. First, Congress required 

EPA to set the renewable fuel obligation annually. That feature 

of the requirement pretty clearly indicates a congressional 

expectation of possible year-to-year variation in all the 

mandatory elements—not merely in the percentage chosen 

(which is addressed in subclauses (II) and (III)). Second, one 

explicitly required element of this annual determination is a

selection among “refineries, blenders and importers,” a 

selection that must be “appropriate.” Taken together, the Act 

seems inevitably to require EPA to apply (at least) some 

thought to the issue of what market sectors should be 

obligated—thought that the agency must apply each time it sets 

the annual obligation. After all, the term “appropriate” 

“naturally and traditionally includes consideration of all the 

relevant factors,” not just a recitation that some time ago the 

agency considered the factors that it then thought relevant. 

Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015) (emphasis 

added) (quoting White Stallion Energy Center, LLC v. EPA, 

748 F.3d 1222, 1266 (D.C. Cir. 2014) (Kavanaugh, J., 

concurring in part and dissenting in part)). The agency, in other 

words, must “exercise its discretion to choose among the 

options” that Congress has given it, Maj. op. 45 (quoting Kisor 
5

v. Wilkie, 139 S. Ct. 2400, 2449 (2019) (Kavanaugh, J., 

concurring in the judgment)), not “explain[]” why, in the 

agency’s opinion, it’s “appropriate” not to choose among the 

options that Congress has given it, id.; see Response to 

Comments, EPA-HQ-OAR-2016-0004-3753, at 542 (Dec. 12, 

2016), J.A. 761 (declaring the point-of-obligation “issue” 

“beyond the scope of this rulemaking”). 

Suppose a law school charter—adopted at the school’s

founding in 1920—calls on the dean to annually set a “tort 

credits obligation,” consisting of a minimum number of credit 

hours students must devote to certain tort subjects; the dean is 

to make the obligation “applicable to negligence, defamation, 

battery, and alienation of affections, as appropriate.” The first 

dean, in 1921, sets the obligation at three credit hours per 

subject—and applies it to all the subjects. For the 2020–21 

academic year, the tenth dean likewise duly requires students

to devote at least three credits hours to those same subjects—

including alienation of affections. Students understandably 

protest, since that tort is now a bygone relic. See Fitch v. 

Valentine, 2005-CA-01800-SCT (¶¶ 79–81) (Miss. 2007)

(Dickinson, J., concurring), 959 So. 2d 1012, 1036 (noting 31 

states have “completely abolished” it). But the dean adamantly 

refuses even to consider their entreaties, “explain[ing]” (Maj. 

op. 45) they’re “beyond the scope” (J.A. 761) of topics relevant 

to the annual credit determination, which, after all, is perfectly 

“consistent with [a] preexisting” 1921 determination that that 

application was “appropriate” (EPA Br. 70). EPA’s reasoning

(on the procedural point—whether or not the phrase 

“applicable . . . as appropriate” requires it to consider the issue)

is, in essence, as startling as the dean’s. Never mind whether, 

as a substantive matter, studying the tort—or exempting 

blenders—is actually “appropriate.” Cf. Maj. op. 52. EPA tells 

us it need not even address the point—ever again.
6

EPA’s response does more to hurt than to help its cause. 

The agency points us to similarities between the provision 

we’ve been discussing, § 7545(o)(3)(B)(ii)(I), and 

§ 7545(o)(2)(A)(iii)(I), which I’ll call the “compliance 

provision.” The two echo each other, see Oral Arg. Tr. 70:19–

25, both using the “applicable . . . as appropriate” formulation.

Annual determination, 42 U.S.C. § 7545(o)(3)(B)(i), (ii)(I):

[E]ach . . . calendar year[] . . . , the Administrator of the 

Environmental Protection Agency shall determine and 

publish in the Federal Register . . . the renewable fuel 

obligation . . . . The renewable fuel obligation . . . shall . . . 

be applicable to refineries, blenders, and importers, as 

appropriate.

Compliance provision, 42 U.S.C. § 7545(o)(2)(A)(i), (iii)(I):

Not later than [August 8, 2006], the Administrator shall 

promulgate regulations . . . . [T]he regulations . . . shall 

contain compliance provisions applicable to refineries, 

blenders, distributors, and importers, as appropriate . . . . 

As EPA reads the two, the agency may define the point of 

obligation once—while announcing the compliance provisions

at the outset of the program. See EPA Br. 66. Congress’s 

command to make the annual renewable fuel obligation

“applicable . . as appropriate” is simply, in the agency’s view, 

a cross-reference back to the “applicable . . . as appropriate” 

determination made by EPA at the outset in its adoption of

compliance regulations. See, e.g., id. at 69–70; Oral Arg. Tr. 

70:19–71:15, 72:13–24, 73:16–74:13.

The agency’s reading, however, seems utterly implausible. 

When Congress uses “identical words” in “different parts of the 

same statute,” we normally infer that those words carry “the 

same meaning.” Henson v. Santander Consumer USA Inc., 137 
7

S. Ct. 1718, 1723 (2017) (quoting IBP, Inc. v. Alvarez, 546 U.S. 

21, 34 (2005)). So if “applicable . . . as appropriate,” in the 

context of setting the compliance regulations, means (as 

everyone agrees it means) that EPA is to contemporaneously

assess the appropriateness of its decision, then the same phrase, 

in the context of setting the annual renewable fuel obligation, 

must mean the same thing: EPA is to make a contemporaneous 

assessment of appropriateness—rather than, as the agency 

implausibly claims, treat a decision made long ago as 

dispositive for the present. 

The majority responds—somewhat bafflingly—that 

nothing in the phrase “applicable . . . as appropriate” indicates 

“when or in what context EPA must make the appropriateness 

determination.” Maj. op. 46 (emphasis added). But that can’t 

be right. Imagine a daycare advertises that it will dress kids for 

recess, “as appropriate.” Would any reasonable speaker of 

English really harbor any doubt as to whether there existed a 

“particular temporal” connection between the selection made 

and the selection’s appropriateness? Id. at 45. Surely parents 

would be surprised to learn that the school’s clothing selection 

for a snowy, December day was not “appropriate” in light of 

the then-pounding blizzard, but, rather, was “appropriate” in 

light of the sunshine from six months earlier, when the daycare 

first opened.

In fact, had Congress wanted EPA to readopt a prior 

determination, without any contemporaneous analysis as to 

appropriateness, “it could easily have chosen clearer language”

to do just that. NLRB v. SW General, Inc., 137 S. Ct. 929, 939 

(2017). Related provisions of the same statute provide 

examples of such straightforward wording. An obvious 

possibility would be to replace “applicable to refineries, 

blenders, and importers, as appropriate,” with “applicable to 

Obligated Parties (as defined by the Administrator under 42 

U.S.C. § 7545(o)(2)),” thus using the pattern adopted in 
8

§ 7545(h)(1), (k)(3)(B)(i). Another obvious way of expressing 

what EPA says Congress meant would have been to modify 

“refineries, blenders, and importers” with the phrase, “in 

conformity with the compliance provisions established by the 

Administrator,” thus paralleling the approach of § 7545(b)(2). 

Both formulations, relying on a past participle, easily invite the 

construction that EPA prefers—allowing the administrator to 

rely on a decision made at some unspecified time in the past. 

“The fact that [Congress] did not adopt [any of these] readily 

available and apparent alternative[s] strongly supports rejecting 

[EPA’s] reading.” Knight v. Commissioner, 552 U.S. 181, 188 

(2008).

Further, rather than using such easy alternatives, Congress 

chose language that, as read by EPA, makes a mess of virtually 

all of § 7545(o)(3)(B)(ii). Again, subclause (I) requires the 

“renewable fuel obligation” to “be applicable to refineries, 

blenders, and importers, as appropriate.” 42 U.S.C. 

§ 7545(o)(3)(B)(ii)(I). If Congress had envisioned EPA

“identif[ying] the ‘appropriate’ obligated parties” in its exercise 

of the compliance provision (§ 7545(o)(2)(A)(iii)(I)), rather 

than of this clause, as EPA says it did, see EPA Br. 7, then 

subclause (I) would be doing no work at all—contrary to the 

“principle of statutory construction that we must ‘give effect, if 

possible, to every clause and word of a statute,’” Williams v. 

Taylor, 529 U.S. 362, 404 (2000) (quoting United States v. 

Menasche, 348 U.S. 528, 538–39 (1955)).

EPA and the majority respond that subclause (I) is needed 

to “clarify[]” that distributors—who can be subjected to the 

compliance provisions—“cannot be” subjected to the 

renewable fuel obligation. Oral Arg. Tr. 75:9–12 (emphasis 

added); see also Maj. op. 47. Compare 42 U.S.C. 

§ 7545(o)(2)(A)(iii)(I) (providing that the compliance 

provisions shall be “applicable to refineries, blenders, 

distributors, and importers, as appropriate” (emphasis added)),
9

with id. § 7545(o)(3)(B)(ii)(I) (providing that the renewable 

fuel obligation shall be “applicable to refineries, blenders, and 

importers, as appropriate”). But the need for clarity could be 

attributed to “most superfluous language.” SW General, 137 S. 

Ct. at 941. And if clarity were actually Congress’s goal, if all 

Congress wanted to do in subclause (I) was exclude 

“distributors” from the universe of potential obligated parties, 

Maj. op. 47, it chose an exceedingly odd way of getting there: 

inserting into an annual exercise the task of indicating what 

entities are “appropriate” targets for the renewable fuel 

obligation. Wouldn’t it have been more straightforward to just 

reference EPA’s prior determination, and then directly state—

for the purpose of clarity—that the renewable fuel obligation 

may not apply to “distributors”? 

In any case, it’s hard to see what distributor-based 

obscurity EPA sees a need for subclause (I) to correct. Because 

the renewable fuel obligation concerns only fuel that is “sold or 

introduced into commerce in the United States,” 42 U.S.C. 

§ 7545(o)(2)(A)(i), (o)(3)(B)(ii)(II) (emphasis added), the 

obligation applies, for any gallon of fuel, only once—i.e., when 

the fuel enters the American economy upstream, not when 

distributors transport the same fuel downstream.

Once the sale or introduction “into” commerce is 

complete—once a given unit of fuel is already flowing through 

American commerce—that same unit of fuel cannot be sold or 

introduced “into” American commerce again; it’s already there. 

While one, for example, might say that a fuel line, which carries 

fuel from a car’s tank to its engine, carries fuel “in” the car, no 

one would say that it carries fuel “into” the car. So too, while 

one might say that a distributor, which transports fuel from the 

economy’s refineries to its retailers, see 40 C.F.R. § 80.2(l); 

EPA Denial at 9, J.A. 781, transports fuel “in” the economy, no 

one would say that it transports (or sells or introduces) fuel 

“into” the economy; again, the fuel is already in the relevant 
10

process. Congress itself recognizes the distinction, referring to 

fuel that is “sold or introduced into commerce,” 42 U.S.C. 

§ 7545(o)(2)(A)(i), (o)(3)(B)(ii)(II) (emphasis added), and fuel 

that is “sold or distributed in . . . commerce,” id. § 7545(u)(4) 

(emphasis added). Because distributors do only the latter—

they move fuel “in,” not “into,” commerce—there is nothing

for subclause (I) to clarify. These downstream intermediaries

can never fall within the universe of potentially obligated 

parties.

My colleagues don’t claim to disagree; at most, they 

declare it “non-obvious” that “distributors cannot be subjected 

to the point of obligation.” Maj. op. 47. But what’s “nonobvious” about it, even if we put the plain meaning of “into

commerce in the United States” aside? That phrase appears 

throughout the statute—and can’t possibly include 

downstream, distributor transactions. Take the statutory 

provision concerning the Energy Information Administration, 

which says that the agency must provide EPA with an estimate 

of the “volume[] of transportation fuel . . . projected to be sold 

or introduced into commerce in the United States.” 42 U.S.C. 

§ 7545(o)(3)(A). Does Congress really expect that estimate—

and the regulatory burdens “based on” that estimate, id. 

§ 7545(o)(3)(B)(i), (o)(7)(D)(i)—to radically fluctuate based 

on the frequency of transactions among the distributors that 

happen to line the distribution network? So if every distributor 

starts selling to another distributor, or several of them, the 

calculated volume of fuel “sold or introduced into commerce in 

the United States” would balloon overnight? I doubt it.

EPA, it seems, shares my skepticism. The agency itself 

describes the renewable fuel obligation, not in terms of 

downstream intermediaries, like distributors, but in terms of the 

initial, upstream players—those “responsible for introducing 

[fuel] into the domestic gasoline pool.” 72 Fed. Reg. at 

23,904/1 (emphasis added). Indeed, when defining the 
11

renewable fuel obligation, EPA speaks not of sales that happen 

to occur, distributor-to-distributor, along the supply chain, but 

only of initial injections into U.S. commerce as a consequence 

of the upstream “produc[tion]” or “import[ation]” of 

transportation fuel. 40 C.F.R. § 80.1407(a), (b).

What about blenders, asks the majority? Aren’t they 

potentially obligated parties, even though they, like 

distributors, handle fuels that have already been “introduce[d]”

into U.S. commerce by other upstream entities, like refineries? 

Maj. op. 46–47. Yes, of course, they are. But that’s because 

blenders—unlike distributors—are the ones who initially sell 

or introduce various types of finished transportation fuel “into

commerce in the United States.” E15, for instance, a blend of 

85% gasoline, 15% ethanol, generally enters “into” American 

commerce at the hands of a blender—the entity that actually 

blends the various components. Just ask EPA, which 

references the “ethanol blenders that introduce E15 into 

commerce.” 76 Fed. Reg. 44,406, 44,410/3 (July 25, 2011). A 

distributor, in contrast—and by definition, whether that’s a 

“post-enactment regulat[ory]” definition, Maj. op. 47, or a preenactment dictionary definition—never introduces anything 

“into” commerce. It only distributes (i.e., “transports” or 

“deliver[s]”) finished transportation fuel, such as E15, from one 

point to another. See 40 C.F.R. § 80.2(l); Webster’s Third New 

International Dictionary 660 (1961) (defining “distribute”). So 

subclause (I), as EPA reads it, is, in fact, a superfluity, because 

the agency could not place the point of obligation on 

distributors whether that clause existed or not.

The muddle generated by EPA’s reading doesn’t end there. 

Consider the effect on subclause (III). That provision provides 

that the “renewable fuel obligation . . . shall . . . consist of a 

single applicable percentage that applies to all categories of 

persons specified in subclause (I).” 42 U.S.C. 

§ 7545(o)(3)(B)(ii)(III). But if EPA is right, and the point of 
12

obligation is determined, not under subclause (I), but under the 

compliance provision, why does Congress take such a 

circuitous route to get there—a reference in subclause (III) to 

subclause (I), which, in turn, in EPA’s reasoning (but without 

linguistic underpinning), refers back to the compliance 

provision? Couldn’t Congress in subclause (III) have just 

alluded to decisions made by EPA under the compliance

provision directly? Cf., e.g., 42 U.S.C. § 7545(o)(4)(A). EPA 

doesn’t say.

Instead, the agency puts essentially all its eggs in the 

compliance provision basket. EPA argues, first and foremost,

that its power to promulgate compliance provisions is broad 

and includes the power to set the point of obligation. And 

“nothing,” it says, requires it to “reconsider” that 

determination. See, e.g., EPA Br. 67–68. My colleagues offer 

a similar thought, claiming that Congress knew how to call for 

a “redo” if that is what it really wanted. Maj. op. 48. Both 

arguments, however, miss the point. When Congress mandates 

an annual “determin[ation]” in 42 § 7545(o)(3)(B)(ii), there is 

nothing to be redone or reviewed. The determination must 

happen anew each year, and the specific instruction to apply 

that determination “to refineries, blenders, and importers, as 

appropriate,” controls, id. § 7545(o)(3)(B)(ii)(I); any general 

authorization to promulgate compliance provisions (including,

I’ll assume, license to not “reconsider” them) must yield to that

specific instruction. See SW General, 137 S. Ct. at 941 (“[I]t is 

a commonplace of statutory construction that the specific 

governs the general.” (alteration in original) (quoting RadLAX 

Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 

(2012)).

“[B]asic principles of administrative law,” unfortunately 

for the majority, only further erode EPA’s position. Maj. op. 

52. We “generally ‘presume[] that Congress expects it statutes 

to be read in conformity with the[] [Supreme] Court’s 
13

precedents.’” Porter v. Nussle, 534 U.S. 516, 528 (2002) 

(second alteration in original) (quoting United States v. Wells, 

519 U.S. 482, 495 (1997)). And those precedents make clear 

that an agency, when exercising its congressionally delegated

authority, must “consider [every] important aspect of the 

problem.” Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm 

Mutual Ins. Co., 463 U.S. 29, 43 (1983). Failure to do so 

“would be arbitrary and capricious.” Id. With that background 

in mind, it “would be strange indeed” if Congress really 

expected EPA, year in and year out, to set the renewable fuel 

standards for the entire economy, yet allowed the agency—sub 

silentio—to do so without considering ever again whether a 

“foundational” element of the regulatory program was 

“appropriate.” Maj. op. 49.

Retreating from the statutory language, EPA claims that 

reading the Act to require it to appropriately identify the point 

of obligation each year would be inconsistent with Congress’s 

“purpose.” Specifically, the agency says, it would “reduce the 

regulatory certainty required for private parties to plan for 

growth.” EPA Br. 72. But EPA’s fears are vastly overblown. 

Its concern about upsetting investment-backed expectations is 

a reason to not change the point of obligation; it is not a reason 

to not consider doing so. The same goes for my colleagues’ 

concerns about the credit trading program, see Maj. op. 50, 

even if that program really does require (as my colleagues seem 

to assume it does) rock solid stability in the point of 

obligation—a dubious proposition, given that credits are held 

individual-entity-by-individual-entity, so that shrinkage or 

swelling of the number of covered entities has no impact on the 

needed computations. EPA’s duty is to “articulate a 

satisfactory explanation for its action,” State Farm, 463 U.S. at

43—an explanation that must consider the industry’s 

(including the credit traders’) reliance on a prior determination, 

see, e.g., FCC v. Fox Television Stations, Inc., 556 U.S. 502, 

515 (2009) (explaining that it “would be arbitrary and 
14

capricious to ignore” the fact that a “prior policy has 

engendered serious reliance interests”); Nat’l Cable & 

Telecomms. Ass’n v. FCC, 567 F.3d 659, 670 (D.C. Cir. 2009)

(similar). In fact, given the substantial reliance interests at 

stake, along with the agency’s prior findings, it seems likely 

that (in the absence of significantly changed circumstances or 

a compelling new analysis) EPA would be able to make rather 

short work of the annual analysis. In most years, the prior 

analyses and the reliance interests would probably dictate the 

conclusion. 

In any event, especially when the alleged downside of 

petitioners’ claim is so chimerical, our “role is not to ‘correct’ 

the [statutory] text so that it better serves [Congress’s] 

purposes.” Va. Dep’t of Medical Assistance Servs. v. U.S. 

Dep’t of Health & Human Servs., 678 F.3d 918, 926 (D.C. Cir. 

2012) (some internal quotation marks omitted) (quoting Engine 

Manufacturers Ass’n v. EPA, 88 F.3d 1075, 1089 (D.C. Cir. 

1996)). That is a job for Congress. 

For these reasons, I respectfully disagree with the panel’s 

conclusion, which grants EPA essentially unfettered discretion 

as to when—or even if—it will consider the appropriateness of 

the point of obligation. 

Indeed, the panel, it seems to me, arrived at its conclusion 

only by extending to EPA the type of “reflexive” deference that 

the Supreme Court has recently criticized. Kisor, 139 S. Ct. at

2415 (quoting Pereira v. Sessions, 138 S. Ct. 2105, 2120 (2018) 

(Kennedy, J., concurring)). The Court has made clear that 

before we may declare a statute genuinely ambiguous—and, 

thus, before we, an Article III court, may surrender to an 

executive agency’s (often self-serving) declaration of what the 

law means—we must exhaust all the “traditional tools” of 

statutory construction. Kisor, 139 S. Ct. at 2415 (quoting 

Chevron U.S.A. Inc. v. Natural Resources Defense Council, 
15

Inc., 467 U.S. 837, 843 n.9 (1984)). Then and only then—

“when that legal toolkit is empty”—may we “wave the 

ambiguity flag.” Id. 

The majority, however, in apparent haste to bow to EPA’s 

admittedly self-serving declaration of what the law means, see 

Maj. op. 51 (describing the “burden[s]” that EPA would rather 

avoid), doesn’t actually use any of the tools of statutory 

construction in an attempt to discern Congress’s meaning. For 

example, besides acknowledging that EPA’s reading of the 

phrase “applicable . . . as appropriate” “is not ineluctable,” Maj. 

op. 48, the majority has almost nothing to say about that

phrase’s ordinary meaning. Although the majority declares it

“ambiguous,” id. at 49, my colleagues do not offer a single 

example of the phrase being used in the way EPA desires—

where the duty to make a selection, “as appropriate,” 

(somehow) permits the decisionmaker wholly to ignore the 

contemporaneous context of his selection. But see supra pp. 5, 

7 (offering examples where EPA’s interpretation makes no 

sense). The majority’s treatment of the presumption of 

consistent usage isn’t much better. It says that there are 

multiple “permissible” ways to ascribe the same meaning to the 

same words, but doesn’t offer any, see Maj. op. 46—all the 

while overlooking an obvious interpretation that satisfies the 

presumption (i.e., EPA must consider the factors that are 

relevant at the time of its decision), see supra pp. 6–7. Finally, 

the majority writes off the canon against surplusage without 

actually finding that the language at issue isn’t superfluous. 

The majority avers that a finding of superfluity “rests on a 

complicated series of inferences,” Maj. op. 47, but that’s not 

unusual, or reason to shy away from wading through the 

muddle. Complex regulatory schemes “can sometimes make 

the eyes glaze over. But hard interpretive conundrums, even 

relating to complex rules, can often be solved.” Kisor, 139 S. 

Ct. at 2415. To solve such conundrums, however, we must 

embrace the canons of interpretation as the useful tools that 
16

they are for discerning Congress’s meaning, not as pests to be 

dodged and swatted away in our rush to deference. Here, when 

those tools are properly applied, we can discern Congress’s 

meaning—which “is the law and must be given effect.” 

Chevron, 467 U.S. at 843 n.9.

Nonetheless, I concur in the judgment. As we explain 

today with regard to claims brought by the Alon Petitioners, 

EPA adequately explained, at around the time it set the annual 

obligation for 2017, why it was not “appropriate” (in light of 

the facts as they then existed) to change the point of obligation. 

See Maj. op., Part IV.B. Although that explanation arose in the 

context of a petition for rulemaking—and was thus subject to a 

more deferential form of arbitrary and capricious review—I 

would hold here (for the same reasons that we give in Part IV.B 

of the majority opinion) that EPA’s reasoning was sufficient 

even under the deference level that demands more of the 

agency.

The difference in our standard of review between an appeal 

from the agency’s annual determination under 

§ 7545(o)(3)(B)(i), (ii)(I), on the one hand, and an agency’s 

conventional duty to entertain a petition for a rulemaking to 

revise an existing regulation, on the other, is in practice fairly 

slight. Under both understandings, the agency is bound to give 

suitable weight to reliance interests, and indeed to the general 

advantage of regulators’ not rocking too many boats. A party 

challenging the status quo faces some sort of burden in either 

context—to point to new facts, or to new discoveries of facts, 

or to previously unnoticed flaws in the agency’s analysis, etc. 

There is, to be sure, a subtle difference in the deference level, 

but deference levels themselves build in a good deal of 

subjectivity. I nonetheless write separately because I see 

Congress as having imposed a specific, if modest, duty, on the 

agency, and having thereby provided an explicit avenue for 

review. That explicitness seems to me designed to, and likely 
17

to, concentrate the mind of the administrator—a congressional 

choice that we should honor.