RFA, Growth Energy file lawsuit over RFS exemption records

By Renewable Fuels Association and Growth Energy | August 30, 2018

The Renewable Fuels Association and Growth Energy today filed a lawsuit in federal district court, alleging that the U.S. EPA and U.S. Department of Energy have improperly denied agency records requested by RFA, Growth Energy, and others under the Freedom of Information Act. The requested documents relate to exemptions from Renewable Fuel Standard compliance obligations granted by EPA.

“As recently as November of 2016, EPA itself has proposed a rule that would make basic information regarding small refiner exemptions available to the public, including the name of the refinery requesting the exemption, its location, and the nature of the relief requested. EPA has admitted that such information should not be treated as confidential,” said RFA President and CEO Bob Dinneen. “So, why is EPA continuing to hide this information from public scrutiny and protect both the previous EPA administrator and highly profitable refiners who probably exploited and abused the exemption provision? Because EPA and DOE both ignored our repeated requests for basic information on the exemptions, we had no choice but to take this legal action. America’s ethanol producers, who are experiencing economic hardship because of EPA’s mishandling of the small refiner exemptions, deserve to know what was happening behind the curtain at EPA. We will continue to fight and take every action necessary to ensure the RFS is implemented and enforced as intended by Congress.”

“EPA should come clean and provide the public with what it deserves—a full accounting of the stark increase in the number of small refinery exemptions it has granted in recent years,” said Growth Energy CEO Emily Skor. “We deserve to know why EPA has supercharged its approvals of these exemptions without reallocating lost gallons and making sure that RFS volumes are met each year.”

RFA and Growth Energy are the named plaintiffs in the lawsuit, filed in the U.S. District Court for the District of Columbia. Both RFA and Growth Energy have submitted several records requests dating back to April 2018 seeking information related to exemptions from the RFS that EPA has granted to small refineries in complete secrecy. EPA and DOE have failed to act within the timeframes required by FOIA and have improperly withheld the requested documents.

By filing this lawsuit now, RFA, Growth Energy, and their allies in the renewable fuel industry aim to increase transparency and foster better oversight of EPA’s use of small refinery exemptions.

 

Background:

Under the RFS, refineries producing transportation fuel must demonstrate each year that they have blended certain volumes of renewable fuel into gasoline or diesel fuel or acquired credits from others called “RINs” representing all or part of those volume obligations. The RFS allows certain “small” refineries—those with a throughput of less than 75,000 barrels per day—to petition EPA for a temporary extension of an exemption from the renewable fuel volume requirements for a given year if they can show that compliance would impose a “disproportionate economic hardship” on them. EPA is required to consult with the Department of Energy to determine whether to grant an exemption. 

To date, EPA has yet to provide the public with any information regarding how it assesses small refinery exemption petitions and it has resisted release of almost all information regarding recent exemptions that have been granted, including: (1) the fact that it has granted an exemption; (2) the name of the exempted refinery; (3) the volume of renewable fuel exempted; (4) the years covered by the exemptions; (5) EPA’s analysis of whether the small refinery would be subject to disproportionate economic harm if it had to comply with the RFS.

Earlier this year, RFA, Growth Energy and allied organizations also filed a lawsuit in the D.C. Circuit Court of Appeals and a related administrative petition with EPA on the misuse of small refiner exemptions. In addition, RFA, the National Corn Growers Association, and other partners filed a lawsuit in the 10th Circuit Court of Appeals on specific exemptions improperly granted by EPA.