Senators urge Trump not to challenge court’s SRE ruling

By Erin Voegele | March 23, 2020

A bipartisan group of 16 senators sent a letter to President Trump on March 19 urging him not to challenge a Jan. 24 ruling by the Tenth Circuit Court of Appeals that struck down three small refinery exemptions (SREs) approved by the U.S. EPA. 

“We write to reiterate our support for the Renewable Fuel Standard (RFS) and express our deep concern with the EPA’s consideration of an appeal that would undercut your commitments made to American farmers,” the senators wrote. “We also request that you direct EPA to cease administering SREs if an appeal is made until the rehearing is completed.”

The letter stresses that the RFS has been a critical driver for rural America and the U.S. agricultural industry. “Farm country has taken successive blows from low commodity prices, trade disruptions, inclement weather, and continued uncertainty over the RFS,” the senators wrote. “Now, with the global economy bracing for the full consequences of the coronavirus, upholding this court decision is a small step that will have resounding benefit for farmers and ethanol stakeholders who are on the ropes.

The Tenth Circuit Court found that EPA abused its discretion in granting three SREs for compliance years 2016 and 2017 as RFS statute only allows the agency to grant extensions for continuously extended exemptions that have been in effect since 2011. The court also found that EPA failed to explain how the agency could determine that a small refinery might suffer disproportionate economic hardship by complying with the RFS when the EPA has also maintained that cost for RFS compliance credits is passed through and recovered, according to the senators.

“Since 2016, the EPA has haphazardly handed out 85 SREs, far exceeding it authority in the process,” the senators said. “At the same time 20 ethanol operations have idled or shut down, removing an economic anchor from their communities. As EPA continues to mull an appeal, it may come under pressure from small refineries to act on the 23 pending retroactive small refinery exemption requests for 2019.  We believe the court ruling prevents EPA from approving any of those 2019 exemption requests while any appeals are pending. EPA should immediately deny any of the petitions that do not meet the criteria laid out in the court decision. Nationwide application of the Tenth Circuit’s opinion by EPA would, in this instance, provide a level playing field and help restore stability and certainty to the RIN markets. Appealing the decision would stall, if not set back, recent progress made on the RFS.”

The letter is signed by Sens. Feb Fischer, R-Neb.; Tammy Duckworth, D-Ill.; Roy Blunt, R-Mo.; Debbie Stabenow, D-Mich.; Chuck Grassley, R-Iowa; Tammy Baldwin, D-Wisc.; M. Michael Rounds, R-S.D.; Amy Klobuchar, D-Minn.; John Thune, R-S.D.; Richard Durbin, D-Ill.; Joni Ernst, R-Iowa; Sherrod Brown, D-Ohio; Josh Hawley, R-Mo.; Tina Smith, D-Minn.; Ben Sasse, R-Neb.; and Gary Peters, D-Mich.