RINFuel: The Millennial Take on the RFS

An Entertaining 101 on Regulatory Issues Impacting the Renewable Fuel Standard

Introducing Kayley Grant

Thanks for stopping by my blog!  My name is Kayley Grant and I am the Compliance Advisor for RINAlliance. The articles posted here are dedicated to explaining the regulatory issues that affect the EPA’s Renewable Fuel Standard, as well as other related fuel industry issues. My wish is that these articles not only entertain you, but also keep you better informed.

How do I know what I’m talking about? I may be just a millennial, but I know a few things. I received my Juris Doctorate from Drake University Law School in 2016. After spending some months in litigation, I realized that suing people isn’t what I wanted to do with my life. Before you ask, yes, that would have been a more convenient revelation prior to going to law school, but hey, here we are. So, I’m using my library of sarcastic comments, legal experience, and knowledge of the industry to get the stale, often misunderstood regulatory issues out to the public at large in a more entertaining fashion.

When I’m not sitting at my computer hopelessly trying to overcome the world’s worst case of writer’s block, I enjoy spending my time outdoors. I am an avid reader, Netflix enthusiast, and enjoy cooking (or thinking about how to cook) the things I online. I am a fan of the Chicago Bears, Chicago Bulls, and the Chicago Cubs…at least I have a theme? I hope you enjoy what you read here and walk away feeling a little more knowledgeable. 

Group Projects and Accountability: Growth Energy Reaches Settlement with EPA For 2023 Set Deadline

Group projects are the worst…or maybe that’s just my sentiments? Oh, come on, we both know you read the words “group project” and groaned! After its recent lawsuit and subsequent settlement with Growth Energy, I think EPA may know exactly how I (we) feel.

Recently, Growth Energy and EPA reached a settlement that requires EPA to publish proposed target volumes for the 2023 Set by November 16, 2022, and have to be finalized no later than June 14, 2023. While the court is expected to approve the terms of the settlement, a consent decree has not yet been issued by the court.

Wait, what is the 2023 Set? When the Renewable Fuel Standard (RFS) was promulgated, Congress set RVOS for every year until the year 2022. By November 1, 2021, EPA, in conjunction with the Department of Energy (DOE) and the Department of Agriculture (USDA), was supposed to have promulgated new volumes for 2023 and beyond. #groupwork. As indicated by the presence of a settlement agreement, this did not happen. This was largely because unprecedented times kept EPA from begin able to accurately set RVOs for 2021 and 2022, let alone dictate the future of the RFS. By filing a lawsuit (and reaching a settlement) Growth Energy was ensuring that EPA would be held accountable to a deadline, even if it wasn’t the one originally set by statute.

Alright, that makes sense, there’s been a bit going on and EPA is on the clock to get the volumes for the 2023 Set published. So, what all goes into setting these volumes? The Clean Air Act requires EPA to perform certain sets of analysis by looking at a set of 6 different factors. These factors include[1]:

  • the impact of the production and use of renewable fuels on the environment, including on air quality, climate change, conversion of wetlands, ecosystems, wildlife habitat, water quality, and water supply;
  • the impact of renewable fuels on the energy security of the United States;
  • the expected annual rate of future commercial production of renewable fuels, including advanced biofuels in each category (cellulosic biofuel and biomass-based diesel);
  • the impact of renewable fuels on the infrastructure of the United States, including deliverability of materials, goods, and products other than renewable fuel, and the sufficiency of infrastructure to deliver and use renewable fuel;
  • the impact of the use of renewable fuels on the cost to consumers of transportation fuel and on the cost to transport goods; and
  • 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.

Essentially, when taken in sum, EPA has to evaluate how the RFS has impacted the environment, the economy, and the energy security of the United States. I know that looks like a lot, but EPA is not doing this alone. Remember this is a “teamwork makes the dream work” situation. EPA has to include USDA and DOE as “partners” in the analysis. Think of this like a group project…except everyone actually does their work.

It also worth mentioning that the settlement between Growth Energy and EPA has to be approved by the D.C. Circuit court. While there is a near 100 percent chance that the court will issue a consent decree (court ratifies the settlement between the two parties and closes the case) with the terms contained in this article, the court also has the right to deny or change the terms of the settlement.

What does this settlement do for the industry? For starters, beyond 2022, the Clean Air Act doesn’t specify how EPA should be handling RVOs other than that it needs to set them. Without RVOs (which, in part, drive the industry), RFS participants don’t have a good handle on future planning. This includes everything from how many gallons of ethanol, biodiesel, etc. will be needed to meet RVO requirements to whether a small refiner is going to apply for an exemption. In general, the renewable fuel industry needs to know what direction the RFS is heading so that it can plan accordingly.

Ok, so to recap, Growth Energy sued EPA to force EPA to do something it is already required to do by statute, there are a lot of factors involved, and it’s going to take some time for EPA to publish the new RVOs for 2023 and beyond, but we should expect to see the new volumes by November? Exactly. Nailed it.

Will EPA be able to meet the November 14 deadline? I think so.

[1] 42 U.S.C. § 7545(o)(2)(B)(ii) (1977).

Aaaddrriiaann!!: Growth Energy Files Suit Against EPA For Alternative Compliance Approach

One classic that my parents instilled in my millennial self was the cinematic masterpiece Rocky. But somehow, screaming “Adrian” before getting into a fight with my brother never won me any points with my parents. #horsehockey. Where am I going with this? Recently, Growth Energy filed a lawsuit against EPA that, well, goes the distance.

You might remember in April of this year, EPA denied 36 small refinery exemptions from the 2018 compliance year, 31 of which had already been granted. When EPA denied those exemptions, it afforded these small refineries an “alternative compliance approach.” Essentially, due to the fact that these denials came well-after the compliance year had ended, EPA allowed obligated parties (refineries and importers of nonrenewable fuel) to meet their 2018 compliance obligation without the need to buy or “redeem” additional RINs to retire against that obligation. As a matter of traditional compliance, small refineries have to buy and retire RINs against the obligation they incur as a result of their business activities.

To be absolutely clear, this alternative compliance approach is not typical. EPA allowing obligated parties a different approach to compliance was a deviation from what the regulations specify had to be done. However, had EPA not done this, the traditional compliance approach would have been to require obligated parties to find RINs that are at least four years old, which is not really a feasible task. Further, most of the small refinery exemptions from that year had already been granted, which means, these small refiners had concluded, predictably so, that their compliance obligation for the year 2018 was successfully waived. In essence, this alternative approach sought to seek a balance between EPA enforcing regulations for obligated parties and the market feasibility of acquiring RINs.

Cue the showdown between Rocky and Apollo Creed (i.e. Growth Energy and EPA). On June 27, Growth Energy filed suit against EPA for EPA’s “decision to excuse certain refineries from their obligations under the Renewable Fuel Standard (RFS)[1].” In other words: “Addrrrriiaann!” At the end of the long wait for EPA’s decision, the final determination was that obligated parties have to meet their obligation…but they don’t need RINs to do it. Growth Energy understandably had to file suit because EPA, while it may be for a good reason, was not following the letter of the law.

Does this showdown make sense? Afterall, one of the reasons EPA granted this alternative compliance approach is because the feasibility of finding RINs that were generated in 2017 or 2018 is next to impossible. If Growth Energy is truly concerned about the RFS, wouldn’t it make sense to let sleeping dogs lie, so to speak?

Welllllll, I think that entirely depends on who you ask. On the one hand, rather than requiring small refiners to find RINs from 2017 or 2018, EPA could have required to small refineries to purchase and retire RINs from some other compliance year. On the other, 2018 was a long time ago and many of these small refiners had already been granted a waiver for that year.

I think Growth Energy’s greater point here is that EPA’s denial of small refinery exemptions has to be more than a pro forma effort. If EPA is going to go to the trouble of denying small refinery exemptions from four years ago, the majority of which had already been granted, there should be a better way to go about meeting compliance obligations. The RFS has seen again and again that small refinery exemptions can have a negative effect on the renewable fuels markets and Growth Energy’s suit is well-founded.

But will Growth Energy and EPA “go the distance?” It’s a little early to tell, but I think they might go blow for blow.

[1] <https://growthenergy.org/2022/06/27/growth-energy-challenges-epas-decision-to-excuse-refineries-from-biofuel-obligations/>.

Stranger Things Season Premier and Other Spoilers: EPA Releases Final RVOs for 2020, 2021, and 2022

With all the hype of Season 4 of Stranger Things, it’s truly a miracle that I get anything done. Admittedly, I wasn’t all about it when it was originally released (pretty sure I was still in the black hole of law school), but I’m a little addicted now. Between defeating the Demogorgon and Dustin’s dimples, the show is pretty easy to love. Speaking of demogorgons, EPA recently released the final Renewable Volume Obligations (RVOs) for 2020, 2021, and 2022, and other, well, stranger things.

Part of the reason the final release of the RVOs was important was that EPA was incredibly behind. When the COVID-19 pandemic broke out in the U.S., EPA’s ability to set timely RVOs that balanced the burden of obligated parties with the progress of the Renewable Fuel Standard (RFS) was greatly hindered. Due in large part to quarantines which decreased commuter traffic, the transportation fuels markets were, like many other markets, economically affected. Predicting what was feasible for obligated parties, renewable fuel producers, blenders of renewable fuel, and other market participants was far more of a guessing game than an exact science. Further, the effects the fuels industry experienced carried over from one year to the next. Like the Season 2 virus from Stranger Things, the deleterious effects of COVID-19 continued to spread from one year to the next.

Ok, yeah, we all know that, we were there. The stranger thing here, however, is that EPA retroactively adjusted the RVOs for 2020 to reflect “actual use” within the fuels marketplace. This means that the RVOs for 2020, which were previously finalized in 2019, were “re-opened” to adjust for the unforeseen events of a global pandemic as well as the resulting consequences. In a way, this makes a certain amount of sense. It doesn’t help the RFS for obligated parties to be held to annual standards that were not met because fuel production was far from its peak.

Yeah, but can EPA legally do this? They think they can, and I guess that’s what matters? According to the D.C. Circuit Court, EPA “retains authority to set annual standards retroactively so long as EPA exercises this authority reasonably[1].” However, in doing so EPA is required to balance the “burden on obligated parties of a retroactive standard with the broader goal of the RFS program to increase renewable fuel use[2].” More specifically, EPA can use its reset authority granted under the Clean Air Act to adjust volumes retroactively. Reset authority? What even is that, like a mulligan? It’s pretty much exactly like that. The Clean Air Act authorizes EPA, in the event certain criteria are met, to adjust or “reset” statutory volume targets. In the current final rule, EPA is using both their reset authority and the precedent set by the D.C. Circuit court to promulgate late and retroactive rules.

But with so much happening in the year 2020, is it really fair to expect EPA not to address the final 2020 standards that were promulgated prior to the national advent of the COVID-19 pandemic? The short answer to that question is probably not. Market participants of the RFS all felt the strains of the pandemic. It makes a certain amount of sense for EPA to adjust those volumes retroactively.

On the flip side, isn’t the precedent set here horrible? If EPA can retroactively adjust final volumes doesn’t that mean that all RVOs will never really be final. To quote Stranger Things, “I think that probably might be true.” However, abuse of this type of authority isn’t really in EPA’s best interest and it certainly doesn’t lend credence to the progress of the RFS. You know, with great authority comes great responsibility and all that jazz…

So what else happened in this current rulemaking? EPA also set the RVOs for 2021 and 2022, albeit late. But better late than never, am I right? Similarly to the logic for 2020, EPA set the 2021 volumes to the “actual volumes of cellulosic biofuel, advanced biofuel, and total renewable fuel that were used in the U.S. in 2021[3].” Again, this isn’t surprising. 2021 was very much just 2020 part II for the fuels industry. While being late in setting the 2021 RVOs is a violation of statute and has been widely discussed and criticized among the participants of the RFS (including by yours truly), guessing at the recovery period for an unprecedented global pandemic is not an easy task. EPA’s balancing has to be just right in order to achieve the objectives the RFS.

So 2020 final RVOs were retroactive and 2021 RVOs were a year-and-a-half late, what’s the deal with 2022 RVOs? We’re already 6 months into 2022, facing a 2023 set, and EPA just released the final 2022 RVOs. Well, 2022 RVOs are higher the volumes for 2020 and 2021, as well as consistent with the proposed volumes from last December’s rulemaking.  While EPA focused on a variety of statutory factors, some of those included market constraints on the ability of RFS annual volume requirements. Those types of factors included: “the commercial availability of cellulosic biofuel, the price and availability of feedstocks, and the availability of infrastructure to distribute higher-level blends of ethanol[4].”

Does this mean that since the RVOS for all three years are finalized that the RFS will have smooth sailing from here? I cannot guarantee that at all, but I hope that’s what happens. *cue ominous music*

[1] American for Clean Energy v. EPA,  864 F.3d 691, 720 (D.C. Cir. 2017).

[2] Nat’l Petrochemical & Refiners Ass’n v. EPA, 630 F.3d 154-158 (D.C. Cir. 2010); see also, Renewable Fuel Standard: Annual Rules, EPA-HQ-OAR-2021-0324; FRL-8521-01-OAR, pg. 21 (June 3, 2022).

[3] Renewable Fuel Standard: RFS Annual Rules, EPA-HQ-OAR-2021-0324; FRL-8521-01-OAR, pg. 8 (June 3, 2022).

[4] Id

Fueling the Discussion: EPA Issues Emergency E15 RVP Waiver

My dad, being the king of dad jokes that he is, recently told me that he needed to take out a loan application…so that he could put gas in his car… While he was quite pleased with the joke, his take on the price of a gallon of fuel these days is felt by many commuters at the pump. Like the typical daughter, I roll my eyes at his jokes, but the fuel supply issues these days are nothing to roll your eyes at. EPA, called on by the Biden Administration, has felt these constraints and has recently allowed an Emergency E15 Reid Vapor Pressure (RVP) Waiver, to be effective on May 1, 2022, for a period of 20 days.

Ethanol at 15 percent concentrations (“E15”) typically requires an RVP waiver to be sold during summertime months.  When EPA first issued RVP waivers, E15 was not being marketed. Instead, the more common blend found at the pump was E10 (ethanol at a 10 percent concentration). When E15 emerged among fuel markets, EPA granted the same RVP waiver considerations for E15 as it had for E10. However, EPA’s stipulation was that a convenience store could not offer E15 during the summer months if the resulting fuel product could not meet the RVP requirements. Summertime fuel use is particularly important because the higher temperatures combined with increased traffic might contribute to an overall rise in vapor pressure.

Now, there’s a bit of a plot twist here. In 2019, EPA passed a permanent E15 RVP waiver, which allowed E15 to be sold year-round, nationwide. More specifically, EPA extended the RVP waiver that was granted to E10 for the summer months to E15. When this happened, affected parties filed suit against EPA for extending beyond the “plain language” of the original rule. In 2021, the D.C. Circuit Court of appeals ruled that EPA was precluded from issuing rule for a year-round E15 RVP waiver.

Ok, cool, cool, cool, but also, why issue an emergency E15 RVP waiver now? If the fuels industry is used to this type of action from EPA, and if, presumably, the science hasn’t changed, why would EPA grant an emergency waiver? One of the main reasons for “gassing up” the emergency waiver to allow for the use of ethanol during the summer months is the Ukraine-Russian war. Regardless of what you think of the relevancy of the claims, the price of fuel at the pump has skyrocketed over the past months. Largely, this is thought to be because Russia has a bit of a stranglehold on global fuel supply. In a statement issued by the Biden Administration, one method of combating “Putin’s price hike at the pump” is by offering “homegrown biofuels” to alleviate fuel costs.

Now, the million-dollar question, will this work? I am not an expert on geopolitical relations, conflicts, nor fuel markets. I do know that certain states offer tax incentives for the sale and, in some cases, the production of pure ethanol and ethanol blends. In states that offer these types of tax incentives, it is common for the ethanol blends to be priced lower per gallon at the pump than fuel that is just gasoline. In states like Iowa, Nebraska, Illinois, and California, tax incentives to encourage the use of E15 and other ethanol blends in the marketplace have been enacted, which can lead to increased sales at the pump. I should note that tax incentives alone will not make ethanol blends cheaper, it also has to do with the retailer’s supply contracts as well as their business model.

Now, I’ve told you a lot of things, but I’ve also mentioned that EPA granted the emergency waiver for a period of 20 days. Doesn’t that mean that the waiver runs out on May 20? Yes, it does. However, EPA will not be precluded from renewing the waiver, as it is needed. If circumstances continue, will EPA grant a renewal of the emergency waiver? While I am not a prophet or fortune teller, I would expect that to be true.

One thing is for sure, the ethanol industry is “fueled up” for May 20.

I’m Shook! EPA Denies 36 Small Refinery Exemptions for the Compliance Year 2018

It seems like I’ve written a lot of articles on Small Refinery Exemptions (SREs). In my defense, there’s been a lot of material there. For example, last week EPA denied 36 petitions for SREs the 2018 compliance year.

For a quick refresher, an SRE is a little bit of a “safe harbor” provision within the Renewable Fuel Standard (RFS) regulations that excuses or waives the compliance obligations for a small refinery so long as certain criteria are met. First, the petitioning refinery (the refinery asking for the petition) must qualify as small under the regulations. Second, the refinery must have demonstrated a disproportionate economic hardship (DEH) in complying with the regulations. This requirement was further defined by 2020 10th Circuit court decision and the 2021 U.S. Supreme Court decision to state that the DEH must be a direct result of RFS compliance.  

Now, let’s get to the significance of EPA’s denial of the 2018 SREs. In 2019, EPA granted 36 SREs for the 2018 compliance year. This decision came prior to either the 10th Circuit or the SCOTUS decision. So, when the case was decided, EPA had to go back and re-do what they had already done. This means, that when EPA granted those SREs for 2018, 31 of the originally-granted 36 had to be reviewed by EPA in order for those SREs to be in line with the court holdings. This is significant because EPA had already granted those SREs.

Wait, what? Since those SREs already granted, weren’t they “safe” from EPA review? Well, sometimes that’s not how that works. When a court reviews something and then remands, or gives back to EPA, that thing has to be re-reviewed by EPA against the court’s most recent decision. This is why you’re seeing 2018 SREs being re-decided even though they had already been granted. Doesn’t this set a terrible precedent so that all SREs are never final? Well, no, not really. Keep in mind, the point here, is to maintain legal consistency and EPA, while a government agency, is not the court system and is subject to the same legal procedures as the rest of us schmucks.

Alright, so what happens now? Well, in theory, these small refiners would be on the hook to find RINs and retire them against any incurred 2018 obligation. But 2018 was so pre-COVID? Right, and the regulations require that all incurred obligations be fulfilled with RINs that were either generated (created) in the same year that the obligation was incurred or the year immediately prior. Essentially, small refineries would be madly searching for 2017 and 2018 RINs.

But like, that sounds pretty impossible? Do RINs even stick around on  the marketplace that long? Uhhh, no, not really. So what’s a small refinery to do? EPA provided an answer to that. EPA has provided the impacted small refineries with an alternative compliance mechanism which would allow them to complete their compliance reporting obligations for the year 2018 but negates the need to purchase and retire RINs against that obligation.

Now, before you get all up in arms about this, let’s talk logistics here. It’s difficult to find RINs from 2020, let alone pre-COVID RINs. Further, the enforcement of the obligation itself isn’t really the point here. The point, rather, is that EPA is now using a different, arguably more accurate, review analysis which could lead to more consistent, predictable results. The over-arching victory is EPA’s implementation of the court decision. Providing an alternative mechanism for compliance so that small refiners can comply with obligations incurred in 2018 is, admittedly, not the best outcome, but it certainly is not the worst and it is understandable. Ok, so, EPA has denied SREs for the year 2018, what do you think EPA’s going to do for 2016, 2017, and 2019-2021? If I had a crystal ball, I could at least pay back my student loans. Sadly, no crystal ball means I cannot answer that question…nor pay off my student loans…

Breathe In, Breathe Out: EPA to Finalize 2021 and 2022 RVOs by June 3

How do you give a millennial incurable writer’s block? Tell them they’re on a deadline. EPA can relate to millennial angst where deadlines are concerned. Growth Energy recently reached a settlement with EPA requiring that EPA finalize the Renewable Volume Obligations (RVOs) for 2021 and 2022 by June 3.

Growth Energy’s settlement terms (the “Settlement”) require EPA to sign the final rule for the 2021 and 2022 RVOs by June 3. Just a quick legalese sidebar, when a civil suit is filed and the parties reach an agreement prior to a final adjudication (the jury giving a verdict or dollar amount), the resulting settlement must be entered into the court record in order for the rules of procedure to be properly met. The document that is filed with the court is called the consent decree and it generally gives the terms the parties agreed to within the final settlement. At this point, the consent decree is proposed pending court approval, which can’t be given until the close of EPA’s comment period. EPA is currently taking comments on the proposed consent decree for 30 days after the date of publication in the federal register…which is coming up…

Why is this significant? If Growth Energy and other companies like them continually sue EPA, isn’t this just another civil lawsuit? If the subject matter of the suit was not so germane to the Renewable Fuel Standard (RFS), I would have to agree. However, RVOs drive the RFS forward, setting the tone for the coming year and for the participants within the RFS. Given the fact that EPA has taken entirely too long to set these proposed RVOs, this Settlement is a mechanism of keeping EPA “honest.” For example, EPA’s consistent and repeated disregard for statutory deadlines to set RVOs is infamous. Without some sort of accountability, EPA has little incentive to return finalize RVOs in a timely manner. This Settlement puts EPA on a deadline. #triggeredmillennialanxiety.

In addition to keeping EPA accountable, it also gives participants of the RFS some assurances. For example, as of this moment, obligated parties are in the position of guessing which RVO EPA decides to finalize. Keep in mind, EPA proposed two different sets of RVOs for the 2021 and 2022 compliance years. This means, at this point, obligated parties are in a bit of a holding pattern until EPA finalizes RVOs. While I am not an obligated party sympathizer (nor demonizer), attempting to plan for two different RVOs is not easy. Combine the two different 2021 and 2022 RVOs with the fact that EPA is re-doing finalized 2020 RVOs and obligated parties are caught in a guessing game of how much capital they may need to retain in order to be in compliance.

Moreover, this Settlement isn’t just to the benefit of the obligated parties. These terms give producers and blenders of renewable fuel some assurances that their gallons and, more to the point, the resulting separated RINs, will be needed within the RFS marketplace as well as a timeline for that demand. EPA’s stalling in setting RVOs hasn’t been easy for these parties either. RVOs give the entities like producers and blenders a snapshot of what’s to come. By requiring EPA to set finalized RVOs, whatever those look like, producers and blenders of renewable fuel begin to get an idea of what the needs of obligated parties may be, and can plan accordingly.

Is everyone at EPA breathing into a paper bag at this point? No, mostly because EPA is not staffed only by millennials. But also because the hard part has already been done. EPA’s gathering of information to set proposed RVOs is a process that requires data gathered from three different government agencies as well as careful consideration of compliance with the Clean Air Act. While EPA has not been consistently timely with RVOs, it’s not like it didn’t have a reason. Between those requirements and a global pandemic, EPA has had their hands full. While this doesn’t excuse lack of compliance with statutory deadlines, it most certainly makes their noncompliance understandable.

Will EPA be able to meet the June 3 deadline? Well, EPA Administrator Regan isn’t a millennial, so I think there’s a pretty good chance of that happening. But I might send some care packages…just in case…

Pushing It Back! EPA Finalizes Proposal for Extension of Annual Compliance Deadlines

During law school, as far as my law professors were concerned, the word “extension” did not exist in the English language. You could ask for an extension and they would look at you like you had antennas growing out of your head and act like they’ve never heard the word before. EPA, on the other hand, not only knows the word, but uses it…with fervor…

Recently, EPA finalized the proposal to extend compliance deadlines for obligated parties under the Renewable Fuel Standard (RFS) as well as the conditioning of deadlines on the release of Renewable Volume Obligations (RVOs). More specifically, EPA finalized the following items[1]:

  • The 2019 compliance deadline is extended again for only small refineries to 60 days after the final publication of the 2021 RFS Standards (RVOs)
  • The compliance deadlines for 2020, 2021, and 2022 are extended for all obligated parties
  • For the future (2023 and beyond), the annual compliance deadlines are one of the following:
    • March 31 of the following compliance year (like it is now)
    • The next quarterly reporting deadline after the effective date of the final rule establishing the subsequent compliance year’s RFS standards (RVOs); or
    • The next quarterly reporting deadline after the annual compliance reporting deadline for the prior compliance year.

Didn’t you just write an article, like, two months ago talking about how compliance deadlines drive the RFS? Yes I did, read 17 More Days Until Christmas! How Compliance Deadline Move the RFS Forward, for more details. So, with this rule change, doesn’t that mean that obligated parties are completely off the hook for ever having to really comply with the regulations? Well, no, that’s not how this works.

An extension, while a foreign concept to some people (*Ahem* law professors), is not equivalent to a waiver. By extending a compliance deadline, EPA is also not simultaneously saying “oh, also, just don’t worry about it.” This is not a communication with a secret code or message for only obligated parties to find. It just means that they have a longer time to comply.

Now, let’s talk about the elephant in the room, conditioning compliance deadlines on the annual release of RVOs. In theory, does conditioning compliance deadlines on EPA action mean that EPA could perpetually not release RVOs on time, therefore never setting a compliance deadline, having the effect of permanently excusing obligated parties from complying with the law? Sure, I won’t lie to you, that is the worst-case scenario, and it is possible.

The next obvious question is whether that possibility is likely, and I have to say no, not really. While EPA is not known for the timely release of RVOs, there is a difference between not being timely and not doing something. Additionally, and I really need you to see this, the release of RVOs is required by law. While EPA may not always be timely, the law clearly requires EPA to release annual RVOs, which EPA has consistently done (even if they haven’t always been on time).

Additionally, an annual compliance deadline, while one motivating factor, is not the only motivating factor an obligated party has to comply with the law. While EPA may have finalized some more “flexible” compliance deadlines, it did not change how many RINs may be used for an obligated party’s annual compliance. An obligated party still may fulfill their obligation using prior year RINs (RINs generated in the year immediately prior to the current compliance year), so long as the use of prior years does not amount to more than 20 percent of their overall obligation[2]. So, even if the compliance deadline for 2021 RVOs gets pushed to 2025, for example, obligated parties still have to satisfy that obligation with 2020 and 2021 RINs. As you might expect, the further from 2021 an obligated party gets, the more difficult those RINs will be to find. It would be an obligated party’s best interest to continue to purchase RINs in the current compliance year, if only to make their future compliance a bit easier.

Another thing that gets overlooked if you only consider the worst-case scenario is EPA only grants extensions of compliance deadline in the event EPA does not timely release RVOs. The very first bullet point for the 2023 compliance year clearly notes that the “default” compliance deadline is still 2023. This means, only if EPA’s failure to comply with statutory deadlines does the deadline become something other than March 31.

Finally, the thing that gets overlooked frequently is the loudness of the voice of RFS stakeholders and participants. While EPA is in the business of promulgating rules and regulations for the progress of the goals of the Clean Air Act, creating these rules in the absence of consideration of RFS participants and stakeholders is just poor policy methodology. EPA wants to encourage the progress of the RFS and the Clean Air Act. It knows doing so without the cooperation of RFS participants is only going to result in hardship.

Could some of my old law professors take a page from EPA’s extension handbook? Definitely. Then again, maybe it would be better for EPA to adopt the same attitude as my professors and forget the word “extension” is a word in English.

[1] 87 F.R. 5696 (Feb. 2, 2022).

[2] 40 C.F.R. § 80.1427(a)(5)-(6) (2020).

New Year, New Renewable Volume Obligations: EPA Releases 2021 and 2022 Proposed RVOs and Revised Final 2020 RVOs

Can we all just agree that New Year’s resolutions are really just well-intentioned suggestions rather than obligations? I could resolve to eat healthier and get more exercise, but carbohydrates and cheese make up about 75 percent of my being and my relationship with Netflix is well-established. EPA must have had a jump-start on its resolutions and finally resolved to release RVOs, among many other things. For this post, however, I am going to focus on the recent release of Renewable Volume Obligations (RVOs) for 2021 and 2022, and the revised 2020 final volumes.

Before I go any further, RVOs are sort of the thing that makes the Renewable Fuel Standard (RFS) world go ‘round. The federal government created the RFS with the intention of infusing renewable fuel into the transportation marketplace. RVOs stipulate how many gallons of fuel the federal government expects to be produced and blended to make transportation fuel. But wait, there’s more! Read Elementary Dear Watson: A Beginner’s Guide to the Renewable Fuel Standard written by yours truly. #selfpromotion. It’s short, I promise! It will give you a better background on the RFS, so you can understand the rest of this post. #pinkypromise.

As you may remember, EPA was a little behind. It was nearly 2022 and EPA had not yet released RVOs for 2021 and was a bit behind on releasing 2022 RVOs. However, EPA must have gotten a jump-start on their resolutions because within a month’s span of time, EPA released 5 proposals, perhaps the most significant being the RVOs for 2020, 2021, and 2022.

Wait, wait just one minute. Weren’t 2020 RVOs finalized in 2019? That must be a typo, or Kayley must be losing it. Ok, two things. Including 2020 RVOs is not the result of a typo…and I also might be losing it. As with many other things that happened as a result of COVID, fuel consumption was not at its highest. Remember that time the government said we had to quarantine which means no one was driving? Yeah, I try not to remember either. Rather than force obligated parties to satisfy an obligation that may have been directly affected by COVID and the lack of transportation, EPA is retroactively adjusting 2020 final RVOs to “volumes of [] fuels actually used in the U.S. in 2020[1].” 

Can they do that? Uhhh…maybe. According to EPA, drastic times calls for drastic measures. Resetting final 2020 RVOs to reflect actual fuel use, makes up for the chaos that was 2020. EPA is claiming it has the ability to do this under EPA’s statutory reset authority[2]. However, I have a sneaky suspicion not everyone is going to agree with that. This is most probably a scenario where the courts are going to have to decide whether EPA’s reset authority can be applied in this way which means those types of questions will need more time to be answered.

Yeah, yeah, we get it. 2020’s resolution is to be the gift that keeps on giving and all that, but what about 2021 and 2022. Well, to put it bluntly, it could have been worse…but it also could have been better. For 2021, there are two main things to consider. One, 2021 was a recovery (or remix?) of 2020. Many areas still were not up to the robust use of fuel for transportation due to COVID. Additionally, 2021 proposed RVOs were released over a year late. EPA noted that requiring obligated parties to meet their obligation for year that has already passed might be difficult or, as they put it “the volumes…properly balance[] the statutory goal of increasing renewable fuel use with mitigating burdens on obligated parties[3].”

Are those things true? I don’t think they’re untrue. 2021 gave us, among the Delta and Omicron variant, more unpredictability and while transportation sectors increased, they certainly weren’t as robust as pre-COVID times. 2021 proposed RVOs should have been published around the end of June, beginning of July and finalized by November 30 of 2020. We all know that didn’t happen for many different reasons. Again, whether EPA was correct in their interpretation of statutory volumes and how they were set is probably going to end up being a question answered by the courts.

Ok, cool. So, 2020 final RVOs are being revised to account for COVID and 2021 proposed RVOs are being set to account for COVID and for the fact that they were released much later than EPA is statutorily required to do. This trend probably continued for 2022, correct? This is where a well-timed plot twist comes into play. There are a few things to note about 2022 RVOs.

EPA set 2022 RVOs at higher targets than 2021 and 2020. While an increase in volume is supposed to occur from year to year, this increase was relatively greater than in years past. EPA is trying to anticipate an increase in renewable fuel use, particularly in nonconventional ethanol, renewable diesel, and biogas[4]. In doing so, EPA set 2022 RVOs close to the target volumes listed in the Energy Independence and Security Act (EISA), even when EPA had the statutory reset authority to set lower volumes.

Does this mean that EPA is going to continue this trend of resetting volumes, but not too far from EISA? Until the 2023 set volumes are released, I don’t think anyone is willing to comment on that. It would be nice if EPA could resolve to more consistent, but admittedly, there are many factors outside their control…like a global pandemic for one…

Does the Clean Air Act require that EPA has to also propose the Bio-mass based diesel volume for 2023? If this were any other year, that’s how this would work. However, with the set of the RFS for 2023, there are some things that are just going to work differently than what RFS participants are used to seeing. EPA hasn’t yet released 2023 set volumes yet, so time will have to be the dictator of what to expect.

Will EPA at least resolve to be on-time going forward? I don’t know, but that’s one resolution that I would want to be more than a well-intentioned suggestion.

[1] Renewable Fuel Standard (RFS) Program: RFS Annual Rules, EPA-HQ-OAR-2021-0324; FRL-8521-02-OAR, pg. 28 (Dec. 7, 2021).

[2] Id. at 31.

[3] Id. at 32.

[4] Id. at 33.

17 More Days Until Christmas! How Compliance Deadline Move the RFS Forward

The month of December really transforms me into the living impersonation of the Christmas spirit. I decorate my house (and the office), make Christmas cookies, and listen to and sing all the Christmas songs on repeat…much to the chagrin of my coworkers. However, the one Grinch-like item that many people have to deal with this time of year is: deadlines. Whether it’s buying that last present or trying to get the numbers to the boss, everyone is dealing with a deadline.

Under the Renewable Fuel Standard (RFS), obligated parties are required to retire RINs against their incurred Renewable Volume Obligations (RVOs) on an annual basis. If you read that sentence and didn’t understand any of it, I’ve written multiple articles on this topic. Start with Elementary Dear Watson: A Beginner’s Guide to the Renewable Fuel Standard, then read Easy Peesy Lemon Squeezy: The Ins and Outs of the Renewable Volume Obligation and finish with The Biofuels Trilogy: RINs, Renewable Volume Obligations, and the Renewable Fuel Standard. After you get done with all those articles (they’re short, I promise), come back to this one.

As we merrily continue, compliance deadlines not only drive the compliance process but also the renewable fuel industry as a whole. It’s a little bit like preventing the industry from experiencing a snowball effect: as long as compliance stays on schedule, all deadlines will be met. What does that look like, exactly? Essentially, the regulations require that annual and quarterly reports be submitted on a schedule. In general, quarterly reports are submitted about every three months and annual reports are submitted every year. Due to the nature of the information contained within an annual report, the regulations allow an obligated party a little bit more time to file their annual report with EPA. Think of it like Santa…having a list…and checking it twice…we both know you sang that last part!

Jingling right along, how does that affect the industry? A compliance deadline has the same function as any other deadline: it keeps everyone honest and up to date. Each year, EPA sets RVOs that obligated parties must comply with. They do this through retiring RINs. However, to make sure that this actually gets done, obligated parties are subject to an annual compliance deadline. With this pressure of an annual deadline, the RIN market progresses and grows to accommodate annual RVOs and the needs of obligated parties. In this way, compliance deadlines are like the period in a sentence: it gives everyone a completely necessary stopping point.

That being said, annual compliance deadlines also function like a RIN expiration date. The regulations require that the RINs that be used for an obligated parties’ compliance purposes were created (generated) in either the same compliance year as the incurred RVO or the compliance year immediately prior. For example, if you were obligated party with a 2021 RVO, you could only use RINs that were generated in 2021 or 2020 to fulfill your obligation. While a RIN from 2019 may have been perfectly generated and separated from a gallon of renewable fuel, the compliance deadline for that year of RIN has already passed, so you could not use it.

Do the elves at EPA ever move or extend compliance deadlines? Well, sometimes. While EPA moving compliance deadlines is about as common as seeing flying reindeer, it is not outside the realm of possibility. For example, last April EPA finalized a rule which extended compliance deadlines for obligated parties to account for the delay in releasing RVOs as well as a pending U.S. Supreme Court case. Even with this rare event, compliance deadlines still function to drive the RFS forward.

Are compliance deadlines really that big of deal? Well, the deadline itself, maybe not. But the consequence of missing one? That’s definitely a bigger deal…about as big as the Grinch’s heart grew to be. EPA does have the ability to level hefty fines for an entity that might not have met their obligation. So, it’s important to stay on top of them….even if it “’twas the night before Christmas, and not a creature was stirring, not even a mouse…”

Get Ready, Get Set Go! EPA Sets Renewable Volume Obligations for 2023 and Beyond

I have two siblings, which means the phrase “ready, get set, go” gives me anxiety. Inevitably, one of my siblings would start before any of us and the game went steadily downhill from there. Similarly, EPA is currently on the “get set” phase of setting volumes for the Renewable Fuel Standard (RFS) for 2023 and beyond…but isn’t jumping ahead of anyone.

Just as a quick little reminder, for the RFS, the year 2022 Is. Not. A. Sunset. Date. *ahem* Now that we’ve got that out of the way, EPA is statutorily required to set the RVOs for 2023 and beyond by considering a multitude of factors and completing a series of steps. First, EPA is required to consider the impacts of the RFS on a whole host of things including but not limited to:

  • the impact of the production and use of renewable fuels on the environment, including on air quality, climate change, conversion of wetlands, ecosystems, wildlife habitat, water quality, and water supply[1];
  • the impact of renewable fuels on the energy security of the United States[2];
  • the expected annual rate of future commercial production for renewable fuels, including advanced biofuels in each category[3];
  • the impact of renewable fuels on the infrastructure of the United States, including deliverability of materials, goods, and products other than renewable fuel, and the sufficiency of infrastructure to deliver and use renewable fuel[4]
  • the impact of the use of renewable fuels on the cost to consumers of transportation and on the cost to transport goods[5]; and
  • 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[6].

*Whew* that’s a lot of stuff! Basically, EPA has to use an accumulation of factors to ensure that it correctly promulgates RVOs for 2023 and beyond. In a way, it’s kind of like making sure all your sibling knows the rules before you play a game…in which one of you will inevitably cheat because they “forgot the rules.” #siblingrivalry.

When it comes to setting the volumes themselves, EPA is required to observe some statutory mandates. Each separate fuel category, such biomass-based biodiesel and cellulosic ethanol, have statutory requirements to be set at a rate either greater than the volumes set for the calendar year of 2022 or set at a volume that would not require EPA to use its cellulosic waiver authority. Essentially, EPA is not allowed to the move the RFS backwards. Further, EPA is required by law to release these volumes at least 14 months prior to the first month of implementation[7]. Since the first month of implementation will be January 2023, this puts the release date around November-ish.

So, EPA just gets to say what happens and no one else has any say? No, absolutely not. These volumes are not created in a vacuum. EPA is required to consult with the Department of Energy (DOE) and the Department of Agriculture (DOA). Imagine trying to “consult” with your siblings…the answer is always going to be go get mom. To that end, remember, the RFS could not exist without the aid of additional industries, namely industries like agriculture that are integral in the production and use of feedstocks. By requiring EPA to consult with the DOE and the DOA, the law is ensuring that these volumes are created from a realistic standpoint, allowing the RFS to grow and proliferate.

Ok, so, we’re less than 14 months out, why aren’t these volume available to the public yet? It is November after all. Did you see all the things that EPA is required to consider before releasing RVOs for 2023 and beyond? Imagine trying to get three different government agencies to coordinate while also paying attention to every single statutory requirement of the impact of the RFS while also trying to do what’s best for the industry that will result in the fewest number of lawsuits. It’s a bit like trying to get you and all your siblings in the same room, at the same time, without anybody throwing any punches…it might take some time and effort. #callingformomworks. Giving EPA a break while it tries to figure things out is, at the very least, understandable. Plus, participants still have an entire year before they have to really begin worrying about this. I think participants in the RFS would much rather EPA take its time so that it meets the letter of the law rather than rush to release RVOs.

Even with all that being said, EPA’s proposal for volumes beyond 2023 is listed on the OMB’s agenda. Once EPA has sent them a draft proposal, OMB can review it for publication. When the draft proposal has been sent to the OMB, “get set” to see what the future brings. #nojumpstarts.

[1] 42 U.S.C. § 7545(o)(2)(B)(ii)(I).

[2] 42 U.S.C. § 7545(o)(2)(B)(ii)(II).

[3] 42 U.S.C. § 7545(o)(2)(B)(ii)(III).

[4] 42 U.S.C. § 7545(o)(2)(B)(ii)(IV).

[5] 42 U.S.C. § 7545(o)(2)(B)(ii)(V).

[6] 42 U.S.C. § 7545(o)(2)(B)(ii)(VI).

[7] 42 U.S.C. § 7545(o)(2)(B)(ii)(VI).

Double, Double, Toil, and Trouble: EPA Has Yet to Release RVOs

It’s the month of Halloween which brings things like too much candy and slasher films, but it’s the thing that is still missing that may be the spookier thing. We are half-way through October and still, EPA has yet to release the Renewable Volume Obligations currently stuck in a black abyss that has to be located at the Office of Management and Budget (OMB).

The release of the Renewable Volume Obligations (RVOs) has been a long-awaited event that seems to never happen. Rumors fly like witches on broomsticks, but nothing seems to materialize. First, they were absolutely going to be released on September 27, for sure. Then they were going to be released on October 1, so long as the government didn’t shut down. However, here we are, October 13, and still there are no RVOs. Spooky.

The renewable fuel industry has reacted as you might expect. RIN prices have been fluctuating, which comes as a shock to no one. The rumors about when RVOs will be released have been circling the air. Each time, the government ghosts their best laid plans to release the RVOs. #halloweenjokes. Every couple of weeks or so, it feels like the release of those RVOs is eminent but, to date, no such luck.  

How did we get to this point? The answer is little bit complicated. First, as many of you are aware the fuels industry has felt the constraints of a global pandemic. Imagine, being the government agency that is required to promulgate rules on biofuels entering the transportation market during the year when staying home became more than an introvert’s best dream. On top of that, the United State Supreme Court ruled on the 10th Circuit case, which changed the way small refiner exemptions applications can be submitted, and the D.C. Circuit has been going back and forth on the rules for E15. If that’s not enough for you, EPA filed a motion to vacate without vacatur in a few small refiner exemption cases asking the Court to let them review the application to make sure that it complies with the ruling from SCOTUS’s overturn of the 10th Circuit case without vacating the original decision. If EPA releases these rules and they’re not what the industry is looking for, there’s going to be double, double, toil, and trouble… #Macbethsaiditfirst.

Second, the short and easiest answer as to why the RVOs are still not released is: politics. I know, I know, it’s everyone’s favorite scapegoat, but that doesn’t make it any less true. While EPA does not want the release of the RVOs to trouble the industry, the Biden Administration doesn’t want to make waves with this either. Now, does this mean that the RVOs being released are going to be absolutely fair for everyone? No, but then again, that’s not the point. The RVOs will inevitably make some sector of the market upset. The point isn’t to be fair to everyone, the point is to advance the goals the Clean Air Act. However, this still doesn’t mean that the government doesn’t try to be considerate to Renewable Fuel Standard (RFS) stakeholders. Balancing the needs of the fuels industry and the requirements of the Clean Air Act is a tightrope of regulatory requirements, industry needs, and the considerations of the future of the RFS.

Would casting a spell or getting the entire OMB to drink a potion help at this point? I mean, I can’t condone the use of witchcraft to bring about a desired result…but also maybe. A lot of the fuels industry is just looking for these to be published at this point, which is perfectly understandable. The rumors surrounding the RVOs have been flying like ghosts and tricking people like goblins for months. It is understandable that participants of the RFS would want to know what the future may hold. One thing is for certain: something at some point is going to happen. Whether fire burn or cauldron bubble, EPA will release the RVOs. #Macbethstillsaiditfirst.

I Take It Back! EPA Files to Reconsider 2019 SREs

Have you ever made a decision and then were like, uh, actually, wait, I didn’t mean that? I do this all the time. Some people call it being indecisive, I call it my prerogative, but we can agree to disagree right? In that spirit, U.S. EPA has recently filed a Motion to Remand without Vacatur with the D.C. Circuit Court to voluntarily reevaluate 31 Small Refiner Exemptions (SREs) that were granted in previous compliance years.

For those of you who don’t know what an SRE is or how it applies to the industry, I have an article for you to read before this one. Read Becoming The Outcast: The “What” Portion Of The Small Refiner Exemption written by yours truly. If you just scroll down on this page, the article is provided for you at the low, low cost of free. That is, unless you want to pay me for them, then I have a Venmo account. #Ihavestudentloans.

For those of you that don’t speak legalese, Motion to Remand without Vacatur, means EPA is requesting that the D.C. Circuit Court allow EPA to review its decisions without requiring them to simultaneously take back or vacate those decisions. It’s bit like saying, “We would like it if you just let us figure it out.”

Ok, now, down to business. As many of you remember the United States Supreme Court (SCOTUS) ruled on the 10th Circuit case concerning whether SREs could be granted on an ad hoc basis or had to be granted in perpetuity in order for the applicant small refiner to be granted an exemption. SCOTUS ruled that while a small refiner could apply for an exemption on a year-to-year basis, it did still have to meet the disproportionate economic hardship qualification. When this decision was finally published last July, the entire industry, whether renewable fuel or nonrenewable fuel, was a bit confused. This confusion was mostly caused by SCOTUS’s attempt at creating a compromise. On the one hand, small refiners are able to apply for SREs on an ad hoc or “as needed” basis. On the other, the small refiners still had to meet the “disproportionate economic hardship” portion of the application process. In any event, SCOTUS provided EPA with an entirely different framework with which to review SRE applications, including prior year decisions.

Why would EPA do this? If you’ve already made the decision on these SREs, isn’t that it? Actually, this is more of pre-emptive action than it is EPA changing its mind. More specifically, in the year 2019, EPA granted 31 SREs of the 36 applications submitted for that year. After SCOTUS issued the recent decision, some refiners, among other parties, brought suit against EPA for past SREs that they claim should have been granted. By many estimates, these suits are just a few of many that could be filed. Put in EPA’s own words, “…voluntary remand would save parties from having to spend any more time litigating over the current record for the adjudication that EPA seeks to reconsider[1].” In other words, we’re doing this before any of you really make us.

Further, EPA is trying to either explain their rational for granting or denying SREs, as the case may be, for the year 2019. Given the time that these SREs were granted under the previous EPA Administrator, it might take some effort to dig into that policy. Again, in EPA’s own words “…EPA wishes to reconsider its Decision and, in doing so, also seeks an opportunity to consider whether to provide a more robust explanation for the adjudications underlying the Decision, should those adjudications remain undisturbed or for any new decisions rendered on reconsideration. While EPA does not confess error, EPA acknowledges that a more robust analysis and explanation of its rationale for any action taken on remand would make any judicial review more efficient[2].” In other words, we need to figure out what we did, give us a second.

Is this a good idea? From a procedural standpoint, it makes a lot of sense. Resolving this many procedural issues in one fell swoop is efficient. Does it mean that some things might change? Yes, that’s distinctly possible. The entire point of this motion was to point out that EPA might need to change their position. EPA just wants everyone to know they’re doing this because they want to, not because anyone else told them to. Will these possible re-adjudications change the framework for the way future SREs are analyzed? Yes, that’s also a distinct possibility.

In EPA’s defense, a lot has changed since the year 2019. There has been a pandemic, Supreme Court case that changed the way framework for the way SREs are evaluated, and a change in administrations, among other things. It’s encouraging to see that they are making time to take into account the new legal framework put forth by the courts.

[1] Sinclair Wyoming Refiner Company v. EPA, nos. 19-1196, 19-1197; Kern Oil & Refining Company v. EPA, no. 19-1216; Renewable Fuels Association et. al. v EPA no. 19-1220; and Wynnewood Refining Company LLC v. EPA no. 20-1099; EPA’s Motion for Voluntary Remand without Vacatur, Pg. 15 (Aug. 25, 2021).

[2] Id. at 13.

I’m Late! I’m Late! For a Very Important Date! EPA Has Still Not Published the Renewable Volume Obligations

If I had a nickel for every time I’ve heard “patience is a virtue,” I wouldn’t need to be employed. Personally, I think having patience is overrated as it is a virtue that I do not possess. While no one is really surprised by this, least of all my boss, many participants in the Renewable Fuel Standard (RFS) are running out of patience with EPA. As of the date of this article, EPA still has not released the Renewable Volume Obligations (RVOs) for the years 2021 and 2022.

As many participants in the Renewable Fuel Standard (RFS) are aware, EPA is extremely late in getting together RVOs for 2021, and 2022 isn’t looking so great either. In a normal year, EPA puts out proposed RVOs by late June, or early July. Proposed RVOs are then usually open to a comment period. EPA is then supposed to finalize the subsequent compliance year’s RVOs by November 30. So, 2021 RVOs should have been released by November 30 of 2020.

Didn’t I just write an article roughly two months ago about how EPA was rumored to release RVOs very soon? Yes, yes I did. However, in my defense, I wasn’t the only one that thought this way. Many voices within the renewable fuel and nonrenewable fuel industry made a convincing case that RVOs would be released in the month of July. The Office of Management and Budget (OMB) even listed the proposed rule to be released in July. It was initially thought that EPA would release RVOs after the Supreme Court ruled on the 10th Circuit case. Unfortunately, this never happened.

Now for the million-dollar question: If EPA knows when RVOs are supposed to be published, then why haven’t they done so? Well, actually, there’s a lot of reasons for that. First, the recent Supreme Court decision on the 10th Circuit case did not lend the industry the clarity it so desperately needs. While EPA may have been waiting on that decision, the decision itself didn’t really give the industry the clear-cut guidance it needed to be able to set realistic RVOs. Second, the Biden Administration is in the middle of promulgating a rule that would set post-2022 RFS regulations before the end of 2021. This is a time-consuming endeavor that should create a delicate balance between the needs of the industry and the wants of obligated parties. Finally, as the year 2022 approaches, EPA is considering the future of the RFS. As of right now, there is a proposed rule in the OMB, that would establish RVOs for the year 2023 and beyond. Again, not something any participant in the RFS wants to be taken lightly.

So, if EPA has this many things to consider, why haven’t they done so sooner? It’s not like they haven’t tried. While proposed RVOs for 2021 have been sitting at OMB since May of 2020, EPA has since faced a global pandemic, a looming Supreme Court battle, a change in presidential administrations and thus, a change in EPA administration, constant commentary from various participants in the RFS with regard to small refinery exemptions, and many other things that I’m certain I failed to mention. I’m sure you can imagine how difficult it would be to promulgate new RVOs when the entire world seems like it was set on fire. #dontplaywithmatches.

Now you’re just being an EPA apologist! Don’t you know that RFS participants are being held hostage by the lack of rules?! I am not unsympathetic to the participants who hold positions in the industry which require them to make business decisions on the basis of EPA rules and policy. #dramasforyourmama.  It has been a tough couple of years for the renewable fuel industry and many RFS participants simply would like a little bit of clarity so that they can make accurate business decisions.

Will EPA issue those RVOs anytime soon? Great question. According to OMB, while the proposed rule for 2021 and, presumably, 2022 were supposed to be issued by now, the final rule is supposed to published by December. It is hard to imagine that EPA would allow the rule to be delayed much longer with a December final date looming ahead. At this point, however, anything is possible. #imagine.

The Last Dance: SCOTUS Issues the Decision for the 10th Circuit Case

In its final pirouette of this last dance, the United States Supreme Court (SCOTUS) finally ruled on Holly Frontier et al. v. Renewable Fuels Association et al. from the 10th Circuit. While the decision was not the sweeping win some Renewable Fuel Standard (RFS) participants were hoping for, it could have been worse.

As you might recall, the case before the SCOTUS centered on three refineries being granted Small Refinery Exemptions (SREs). To recap, here are the facts for each refiner that landed this case in the Supreme Court:

  • Holly Frontier Cheyenne, LLC (“Cheyenne”): Cheyenne had been granted an exemption for the year 2012 but had not petitioned for an extension of the exemption for the years 2013 and 2014. However, in 2017 Cheyenne petitioned for an exemption for the compliance year 2016. The Department of Energy (“DOE”) recommended to EPA that Cheyenne should not be a granted an exemption. EPA, however, granted an exemption for the compliance year 2016 in full.
  • Holly Frontier Woods Cross Refining, LLC (“Woods Cross”): Woods Cross had never petitioned nor been granted a small refinery exemption for any year. However, in the year 2017, Woods Cross petitioned EPA for an exemption for the compliance year 2016. Woods Cross did not identify as having a disproportionate economic hardship, a requirement to be granted an exemption. DOE recommended that EPA grant Woods Cross a partial exemption, but EPA granted a full exemption.
  • Wynnewood Refining Company, LLC (“Wynnewood”): Wynnewood had been granted a blanket exemption for the year 2011 and 2012. However, Wynnewood had not received an exemption since the year 2012. Wynnewood petitioned EPA for an exemption in 2017 for the compliance year 2016. DOE, noting that Wynnewood’s compliance would “not appear…to threaten the refinery’s economic viability,” recommended a partial exemption. EPA, nonetheless, granted Wynnewood a full exemption for the year 2016.

Initially, once EPA granted the exemptions for each refiner, a coalition comprised of various renewable fuel groups objected and challenged the exemptions. The 10th Circuit then vacated (reversed) EPA’s decision for the exemptions. Refiners then appealed the case to SCOTUS and shockingly, SCOTUS granted certiorari, choosing to hear the case. During oral arguments, the two parties centered their arguments around whether the regulations required refiners to apply for an exemption every year in order for it not to lapse. Don’t worry, the arguments were a bit of a snooze fest, you didn’t miss anything. SCOTUS determined that there was nothing in the statute to require a refiner to apply for an exemption every year in order not to lose the ability to do so. Essentially, a refiner can now apply for an exemption in any year, regardless of whether they have applied for an exemption in past years or previously been denied an exemption.

To put this decision in better context, there are two schools of thought on how SREs should be applied. One application is more of a “funnel” approach. This is what was seen in the 10th Circuit. Essentially, once a refiner has let their exemption lapse or been denied an exemption, the refiner would lose the ability to apply for the exemption. In this way, the refiner was “funneled” towards meeting their obligation. The other application is more of a “safety-valve” approach. This approach would allow refiners to apply for an SRE only in the years that they can effectively show a financial hardship, regardless of whether that refiner has let a previous exemption lapse or had one denied. In this way, this approach is more of a “safety-valve” because it stops undue financial hardships in years where the small refinery might not be able to meet their RIN obligation. This latest decision by SCOTUS solidifies the “safety-valve” approach because it allows small refineries to apply for SREs nonconsecutively.

From the outside looking in, this decision looks a lot like a sweeping win for refiners. It’s important to note, however, that this decision is a compromise, not a full-fledged refiner win. While SCOTUS did away with the “funnel” approach to compliance, they didn’t waive the requirement for refiners to show a hardship. In this way, SCOTUS “split the baby,” so to speak. On the one hand, refiners no longer have to be concerned about whether they can apply for exemptions based on the timeliness of their application or previous denials. On the other hand, they are still required to show the hardship, as an effort to ensure refiners are applying for exemption in years’ they truly need them.

What does this mean for the industry? It means EPA will still need to use its judgment in determining whether to grant SREs, which means the uncertainty surrounding SREs remains.  This is a large part of why neither the renewable fuels industry nor the nonrenewable fuels industry is happy. SCOTUS’s compromise did more to create unpredictability than it did to lend stability. By being able to jump in and out of the need for RINs, renewable fuel producers and blenders alike do not gain the market certainty of renewable fuel and RINs. However, with the hardship requirement, refiner’s also do not gain the certain safety of an SRE. It’s a little bit like setting up an industry on quick-sand…not stable, not fun, and will definitely leave you spitting.

If you bet this went over across the industry about as well as a lead brick, you’d be correct. Within in a week of the published decision, bipartisan legislation called the Small Refinery Clarification Exemption Act of 2021 was introduced in the House. One of the parties on the original suit called on EPA to publish a memorandum of understanding when EPA publishes RVOs…whenever that’s going to happen. On the refinery side, a handful of SRE applications were withdrawn and a couple were added. So basically, no one knows what’s going on and what little they do know, they’re not happy about. The point here, is that this decision effectively impacts the landscape of the RFS. Regardless of your position in the RFS, this decision did not lend the industry the certainty it so desperately needs. Will the industry even out? Probably. It will take EPA time to be able to give effective guidance to navigate this new landscape.

A Bit of Light: EPA to Release a Combined RVO

It is no secret that you have to be a little bit brave to be a participant in the Renewable Fuel Standard (RFS). For the past few years, it seems the RFS has been a hotbed of issues. However, there seems to be a little bit of light at the end of the tunnel. EPA is working to release the Renewable Volume Obligations (RVOs) for 2021 and 2022.

As most RFS participants know, RVOs help drive the production and demand for renewable fuel. If you don’t know what an RVO or obligated party is or why the RVOs are important, stop reading this and start reading Easy Peezy Lemon Squeezy: The Ins and Outs of the Renewable Volume Obligation. It will explain what those things are in a very simple way. #shamelessplug.

Every year, EPA is required to release the RVOs, so obligated parties have the ability to plan accordingly for the forthcoming year. Typically, EPA releases the forthcoming years’ RVOs in two phases. First, EPA releases the proposed RVOs, after they have faced review at the Office of Management and Budget (OMB), sometime in late June, early July. After those are released, EPA allows the industry to comment on whether they think those proposed volumes are reasonable. Following the comment period, EPA considers the feedback and finalizes the RVOs. The regulations require that EPA release the finalized RVOs by November 30 of the proceeding compliance year. So, for example, the RVOs for 2021 should have been released by November 30, 2020.

Like many things that were erased by the events of 2020, the RVOs for 2021 were never released. In May of 2020, EPA provided the 2021 RVOs to OMB…where they stayed for the remainder of 2020. Why the full stop? Well, there are several reasons for this. Between the issues arising out of a global pandemic, stay-at-home orders, and quarantine restrictions, the transportation industry saw a massive decline in demand, resulting in the need to severely temper supply. The drastic change in supply led to more uncertainty in an industry already not known for stability. While the fuels industry has been seeing a rapid rebound, we are 6 months into 2021 and EPA has yet to publish any sort of RVOs for the year. So, the million-dollar question is: what’s going to happen with the RVOs for 2021?

Rumor has it that EPA is going to release the RVOs for 2021 and 2022 at the same time. How will EPA go about accomplishing this? The mechanism by which EPA may go about completing this task is up for debate. Rather than focus on how this might happen, RFS participants can take heart by hearing that this is happening at all. While both sides of the fuels industry will have a different story of what has been happening, based on viewpoints and position in the RFS, I think its pretty safe to say that no one has been particularly pleased with events. EPA’s focus on getting RVOs out for 2021 and 2022, regardless of timing, is an encouraging change for many RFS participants.

What will these new volumes look like? That’s a pretty good question. Headlines from May stated that the gallons for 2021 and 2022 will be in line with those issued for 2020. EPA has said that the volumes are not likely to be increased as the industry is still recovering from the consequences of the COVID-19 pandemic. More recent headlines call that into question.

In any case, the fact that EPA is finally getting around to finalizing RVOs is a good sign for the RFS. Regardless of the mechanism EPA chooses to use, RFS participants are starting to get more certainty within the industry. After 2020 and the first part of 2021, giving the industry some stability and predictability is a welcome relief.

Pounding the Table and Yelling: Supreme Court Hears Oral Arguments on the 10th Circuit Case

“If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.” -Carl Sandburg

Recently, the United State Supreme Court (SCOTUS) heard oral arguments on the 10th Circuit case regarding EPA’s granting of three different extensions of Small Refiner Extensions (SREs). As you might recall, in order to be granted a small refiner exemption, a small refinery had to be considered “small” and had to have had experienced a disproportionate economic hardship. Further, once a refiner either failed to apply or was denied an exemption, the refiner was supposed to be precluded from being granted an exemption in any future years. In other words, failure to apply or be granted an extension of the original exemption resulted in the refiner losing that exemption. Just so you understand where the case is at with SCOTUS, here is the recap on what the original 10th circuit case was specifically about:

  • Holly Frontier Cheyenne, LLC (“Cheyenne”): Cheyenne had been granted an exemption for the year 2012 but had not petitioned for an extension of the exemption for the years 2013 and 2014. However, in 2017 Cheyenne petitioned for an exemption for the compliance year 2016. The Department of Energy (“DOE”) recommended to EPA that Cheyenne should not be a granted an exemption. EPA, however, granted an exemption for the compliance year 2016 in full.
  • Holly Frontier Woods Cross Refining, LLC (“Woods Cross”): Woods Cross had never petitioned nor been granted a small refinery exemption for any year. However, in the year 2017, Woods Cross petitioned EPA for an exemption for the compliance year 2016. Woods Cross did not identify as having a disproportionate economic hardship, a requirement to be granted an exemption. DOE recommended that EPA grant Woods Cross a partial exemption, but EPA granted a full exemption.
  • Wynnewood Refining Company, LLC (“Wynnewood”): Wynnewood had been granted a blanket exemption for the year 2011 and 2012. However, Wynnewood had not received an exemption since the year 2012. Wynnewood petitioned EPA for an exemption in 2017 for the compliance year 2016. DOE, noting that Wynnewood’s compliance would “not appear…to threaten the refinery’s economic viability,” recommended a partial exemption. EPA, nonetheless, granted Wynnewood a full exemption for the year 2016.

The 10th Circuit disagreed with EPA’s granting of these exemptions and held that these refineries were required to meet their compliance obligations. The refineries appealed this decision to SCOTUS and the arguments on this case were recently heard.

What does it look like when SCOTUS hears oral arguments? The petitioner (the party appealing the case) gets to present an argument for 10 minutes and then the justices get to question the petitioner about their arguments. The respondents (the party responding to the appeal) then also get 10 minutes to present their arguments and also have to respond to questions from the justices.

Who said what? As you might expect, the case hinged nearly entirely on the definition of the word “extension”. The Petitioners, (HollyFrontier et al) argued that the word extension means “to grant” while the respondents argued that the definition of “extension” means “to lengthen.” Was this a case that was “edge of your seat” exciting to listen to? Well….no, not really. Lawyers arguing about two different applicable definitions for the same word is hardly a scintillating experience. However, the implications this case might have are more suspenseful.

To everyone in the renewable fuel industry, this case stands for the possibility that EPA has to reign in their actions and abide by the letter of the regulations. Since 2016, the number of SREs granted to small refiners that haven’t quite deserved them has only increased. The 10th Circuit case that was before SCOTUS is a perfect example of EPA’s unilateral extension of the scope of their regulatory authority. Having this case before SCOTUS is an opportunity for EPA as well as participants in the renewable fuel standard to have some clear legal guidance, possibly providing some much-needed certainty to the industry.

So what did SCOTUS decide? Who’s got the correct definition? Well, as of right now, not even SCOTUS has an answer to that question. Once SCOTUS hears a case, they need a certain amount of time talk the case over, take a vote, and write an opinion. The opinion on the case is expected to be published sometime in June or even as late as early July.

So, then no one really knows what’s going on? That’s pretty much true, but some people are getting a little nervous. #epa. Last week, EPA filed a motion to vacate with SCOTUS to remove SREs given to the three refineries listed in this article. Does this mean that SCOTUS will not side with the refineries? No, it doesn’t mean that at all. It simply means that EPA’s might be proactively anticipating the direction the case might be headed.

While it’s anybody’s guess how this case will turn out, the renewable fuel industry has a better legal argument. Participants in the renewable fuel standard will have to wait and see which side yelled louder.

Providing Back-up: Certain States File Amicus Brief in Small Refiner Case Before the U.S. Supreme Court

A lawyer is the only person who writes a 21-page argument and calls it a “brief.” Sometimes, just one “brief” won’t do it. Recently, the states of Iowa, Nebraska, Illinois, Michigan, Minnesota, Oregon, South Dakota, and Virginia, (“the States”) filed a brief as amici curiae, or, as it’s better known, an “amicus brief.”

Before I go any further, let’s talk legal-ese for a moment. An amicus brief is filed by individuals or entities not party to the original case, but who have an interest in the outcome. It’s a little like saying, “hey, we know this isn’t our fight, but we care what happens here because of ‘x, y, z’.” In other words, it’s like filing a “back-up brief” on behalf of whichever side you’re trying to promote. In this case, the States are supporting the Respondents, which are the renewable fuel industry advocates.

How did we get here? As you may recall, in January of 2020, the 10th Circuit ruled on case between a few refiners and several different renewable fuel-supporting coalitions. The court determined that EPA had granted three different small refiner exemptions (SREs) to refiners who did not qualify for those exemptions. The reason the 10th Circuit case was so critical is because it reversed an earlier decision which effectively argued the exact opposite position. The 10th Circuit case was appealed, which means it went to the Supreme Court of the United States (SCOTUS) and SCOTUS granted certiorari (agreed to hear the case). SCOTUS is set to hear oral arguments from the parties on April 27.

Now that we’ve got that out of the way, let’s talk about what the States said and why this is important. To use their words directly, the States filed the following three arguments:

  • Authorizing the unfettered granting of new small-refinery exemptions would gut the Renewable Fuel Standard (RFS);
  • Petitioners’ [EPA] broad interpretation would cause substantial economic harm to the rural economies of many States; and
  • An ineffective Renewable Fuel Standard would harm the environment and efforts to obtain energy independence[1]

While the last argument is important, I am going to focus on the first two for the purposes of this discussion. The first argument, as you might imagine, centers around the harm the renewable fuel industry has suffered as a result of the granting of these SREs. In other words, they argued that 2016 through 2020 had been a disaster. To be honest, they’re not wrong. When EPA grants an SRE, the annual Renewable Volume Obligations (RVOs) are not re-calculated to include the exemptions. Remember, the RVOs drive the production of renewable fuels and the trading of RINs on the marketplace. To understand more about that, read Easy Peezy Lemon Squeezy: The Ins And Outs Of The Renewable Volume Obligation written by me. #shamelessplug. This means, that the gallons EPA exempted are simply taken out of the market without regard to the consequences.

To say the disregarded consequences have been dire, would be an understatement. For example, since 2017, EPA has granted 86 SREs over three compliance years[2]. To put this more in terms of dollars and cents, the renewable fuel industry has lost an average of $2 billion per year for those three years or $6.4 billion dollars for all three years. While those numbers may be comparatively small to other industries, they are definitely more than pocket change.

The second argument centers around what happens if EPA continues to grant SREs as rampantly as they have been. Essentially, the States argue that, if EPA’s trend of granting SREs because they feel like it continues, the states will suffer irreparable economic harm. To illustrate their point, the states use some fairly alarming but convincing statistics. In October of 2019, before the advent of COVID and the “new normal,” a total of 19 ethanol plants had closed across the nation[3]. In Iowa, for example, the renewable fuel industry accounted for nearly $4 billion of the gross domestic product for the year 2020[4]…so even in a year where the transportation industry saw a noticeable decline, a good chunk of Iowa’s 2020 budget came from the renewable fuel industry. Additionally, the renewable fuel industry in Iowa alone is responsible for over 37,000 jobs and generates an average of $1.8 billion in income for Iowa households[5]. I’m focusing on Iowa because I live here and I have seen these effects first-hand, but I don’t want to undermine the dire consequences these SREs have had on the other states…except for Nebraska…#iowarules.

Alright, so, the states that signed and filed the brief suffered severe consequences, but if we’re being honest, no one really cares about the “fly over states” anyways. I mean, that’s why they’re called “fly over” states right? Actually, west and east coast, you might want to care…a lot…According to the States, the renewable fuel industry is an economic imperative. In the year 2020, even with COVID and all that it has entailed, the renewable fuel industry supported more than 300,000 jobs and $18.6 billion in income for households nationwide[6]. The States estimate that the SREs have had a devastating economic impact on the national GDP, to the tune of $34.7 billion. Again, that’s not a trillion-dollar government contract, but that’s not a small impact either.

In the more abstract, the States point out the impact these continued SREs will have on rural communities. For those of you from larger cities or states that are more densely populated, allow me to paint you a picture. Many towns within the States consist of a gas station, one or two bars, a church and soy or cornfields as far as the eye can see. That’s absolutely not an exaggeration. Ethanol and biodiesel plants and blenders of biofuels provide jobs and revenue for these rural communities. These jobs and revenue aren’t just limited to the actual plant or gas station, but to the farmers whose crops or cattle are the basis for biofuels. As the States correctly point out, these rural communities will suffer irreparable economic harm if SREs continue to be so liberally granted causing these biofuel plants and gas stations are put out of business.

So, why does it matter that the States filed the brief? It matters, if not for all of the foregoing reasons, because the States are not direct participants in the RFS. It’s one thing for a party that is directly harmed to come forward, it is another for a party with less direct harm to come forward. Things have gotten so bad that the States who have benefitted from the RFS, whether directly or indirectly, have started to notice. It has started to affect the “bottom-line” of these states’ budgets as well provided real-world harm to many rural communities located within the States.

What will SCOTUS do? Great question. Both the Respondents and the States have made persuasive arguments, but sometimes that’s not enough and also, the Petitioners (the refiner side) have also made persuasive arguments. One thing is for certain, April 27 cannot come soon enough!

[1]Brief for Iowa et al., p. 8-14, HollyFrontier Cheyenne Refining et al., v. Renewable Fuels Association et al., Nos. 20-472 (2021).

[2] Id. at 7.

[3] Id. at 11.

[4] Id. at 12.

[5] Id. at 12.

[6] Id. at 13.

Winds of Change: EPA Announces Support of 10th Circuit Decision

The winds of change are blowing directly at EPA….and causing the agency to shift in a completely opposite direction. At the risk of speaking too soon, it looks like EPA might be returning to a pre-2016 narrower read of the regulations with respect to small refinery exemptions (SREs).

Recently , EPA announced that after “careful consideration of the 2020 decision of the U.S. Court of Appeals for the Tenth Circuit in Renewable Fuels Association et al. v. EPA, 948 F.3d 1206 (“Decision”), EPA supports that court’s interpretation of the renewable fuel standard (RFS) small-refinery provisions.” EPA’s announcement follows the decision of the United States Supreme Court to grant certiorari to hear the appeal of the 10th Circuit’s opinion.

In January of 2020, the 10th Circuit ruled on three different small refinery exemptions. Associated refineries to Wynnewood Refining and HollyFrontier were granted SREs for the years 2013 to 2016. However, each refinery had either not met the burden of being a small refinery as defined by the regulations or had failed to apply for an exemption but had applied for an extension of an exemption that had never existed. The 10th Circuit held that, since the refineries did not meet the requirements of the regulations, the SREs that had been granted should be withdrawn.

To qualify for an SREs, the applying refinery had to have a throughput of less than 75,000 barrels per day (in other words, be “small”) and had to show an undue hardship. SREs were granted as a blanket exemption under the first iteration of the Renewable Fuel Standard (RFS). Beginning in 2013 any small refinery that had received an exemption would have to apply for an extension of that exemption on an annual basis. Failure to apply or denial of an application for an SRE would forever revoke a refinery’s ability to receive an SRE in the future. For more information read Becoming the Outcast: the “What” Portion of The Small Refiner Exemption, written by yours truly.

One of the most shocking things about EPA’s recent announcement is just how completely out of character it is for the agency. Over the past 4 years, EPA has been granting SREs like it’s their job…even when it’s not. For example, in the years 2013-2015, EPA granted 7 to 8 SREs a year. However, in the year 2016, the EPA granted 19 SREs, nearly as many as the past three years combined. Since 2016, the number of SREs granted has only increased, causing an outcry in the renewable fuel industry. Between SREs, and COVID considerations, participants in the renewable fuel standard have suffered everything from falling fuel demand to dropping RIN prices. For the past four years, EPA seems to have been doing everything it can to give small refineries an advantage that other members of the renewable fuel industry simply don’t have.

So why the 180-degree turn? Great question. It could be that the United States Supreme Court is set to publish their opinion in June on the appeal of the decision of the 10th Circuit. Being called out by the Supreme Court doesn’t seem like a position that you want to be in. It could also be that the incoming Biden administration is slowly changing the landscape of EPA. It could be that EPA has finally gotten tired of being admonished by participants of the renewable fuel industry. Whatever the reason, this return to a more consistent regulatory analysis is a welcome change.

Will this shift toward a narrower reading of the regulations continue? If I had a crystal ball, I could definitively tell you…and be worth a lot more money. As you might expect, the Supreme Court decision might be the most decisive factor when determining the future course of EPA action. Depending on what the Court decides, EPA might become “stuck” in a position where it no longer has the flexibility to grant SREs with quite so much heedlessness. However, that also assumes that the Supreme Court will rule in favor of the 10th Circuit’s decision, and there is no guarantee that will happen.

Is EPA a little late to the party with their announcement? It’s been over a year since the 10th Circuit decision was published which would make it seem like EPA should have jumped on this bandwagon a long time ago. It might be important to note that EPA rarely does anything quickly, and is bound by additional factors, such as court decisions and administrative precedent. This might make EPA a little slower to the “we should really do what the regs say here” train. But I guess better late than never, right? Hopefully, this trend toward a more consistent read of the regulations continues, and the participants of the renewable fuel industry can go back to enjoying just a modicum of predictability.

The Man with the Plan: Biden’s Pick for EPA Administrator Wants a More Thorough Review of Biofuels Policies

Sometimes, the only thing you need is Stan, the man with the plan…or in this case, Michael Regan. The Biden Administration’s pick to lead the Environmental Protection Agency (EPA) plans to sit down with general counsel to go over the biofuels policy with respect to Small Refiner Exemptions (SREs).

As many of you know, each new presidential administration is able to pick its own administrators. The head of the EPA, otherwise known as the EPA Administrator, is one such position. The person picked for this position is typically someone who can best enable the incoming administration’s environmental policy. As the biofuels industry is painfully aware, EPA’s treatment of certain biofuels policies, such as SREs, can vary greatly from administration to administration as well as from administrator to administrator.

Before we get too much farther into discussing Regan’s plan, it might be worth it to give you a couple of quick reminders. First, at the beginning of January 2020, the 10th Circuit overturned the EPA’s decision to grant SREs to three different refineries based on various reason. These reasons included that the refinery had never been granted an exemption but had applied for and been granted an extension, or the exemption had lapsed because an extension had not been filed for in consecutive years. The refineries affected by this decision had appealed to the Supreme Court and that decision is expected to be published this June.

The second thing you’ll probably want to remember is how an SRE works. To be brief, an SRE may be granted to a refiner who may not be able to meet the compliance obligation created due to the refiner’s business activities. The EPA has various sets of criteria when determining whether to grant an SRE as well as certain regulatory timelines that must be met. Over the past few years, the biofuels industry has experienced EPA’s rampant granting of SREs which has undermined the biofuels industry as well as become problematic for industry stakeholders. To complicate matters, the courts have not been consistent on the outcome anytime a party had challenged EPA’s rulings on SREs. Between the inconsistencies with EPA and the courts, biofuels participants have found navigating this ever-changing landscape to be beyond difficult.

So who is this Michael Regan and what’s his plan? Regan was the former head of North Carolina’s environmental regulator. According to a statement made by Mr. Regan during a hearing on his nomination, the one thing he knows is that he has to sit down with legal counsel. Ewww. Lawyers. It takes one to know one, am I right? To be more precise, Regan is quoted as saying, “[t]he one thing I know I have to do is consult with our general counsel, understand where we are in the legal process, and also understand what options do we have to continue conversations.” When asked if he would wait to see what the Supreme Court would do, Regan is quoted as saying that’s “one way to go.” Yes Regan, it sure is. Regan also noted the importance of transparency and communication surrounding SREs as well as a commitment to following the law.

Great, so his plan is to talk to some lawyers and be clear. Awesome. Actually, after these past years’ turmoil, greater transparency, and a return to a closer read of the regulations would be refreshing. Hopefully, this means that the Biden Administration’s EPA will at least give us a more consistent biofuels policy. It is encouraging that Mr. Regan is taking steps to be guided by informed people for determining the direction of the current court case. Time will be the best teller of whether Regan is able to achieve a more stable biofuels policy.

Hulk Smash! The Importance of the Valero v. Sundive Lawsuit on the RIN Market

Sometimes, thing don’t happen the way that they should, and it makes others very angry. Valero Energy Corporation (“Valero”) is just a tiny bit mad at Sundive Commodity Group (“Sundive”). So mad, in fact, that Valero is suing Sundive over Sundive’s inability to procure RINs for Valero, forcing Valero to pay over $10 million more for RINs to meet their compliance obligation. #hulksmash

So what actually happened in this case? Valero had about 100 contracts with Sundive for the purpose of securing RINs to meet Valero’s compliance obligation. Valero alleges, through the terms and conditions of these contracts, Sundive was supposed to secure roughly 106 million RINs. The lawsuit alleges, in September of 2020, Sundive failed to deliver 21.6 million RINs to Valero. The lawsuit also alleges that Sundive failed to deliver 8 million RINs in October and 4 million RINs in November. The lawsuit alleges that, due to Sundive’s multiple breaches of contract, Valero had to spend about $10.1 million more to secure the same number of RINs. In other words, if Sundive had done what they had promised, Valero would not have had to spend as much money for the same thing.

As a quick refresher, obligated parties and exporters are required to retire RINs to meet any compliance obligation that they incur over the course of a compliance year. This means, an importer of nonrenewable fuel, a refiner, and an exporter of renewable fuel, by virtue of the fact of their business activities create an obligation, will need RINs to satisfy that obligation. The obligation that these types of businesses incur can be satisfied multiple ways, but the most common way is for these businesses to purchase and retire RINs against their obligation. For more details, read Easy Peezy Lemon Squeezy: The Ins and Outs of the Renewable Volume Obligation, written by yours truly.

So why does this matter? This is two corporations entering into one of the most boring types of lawsuits (at least, in my opinion) and in the end, it all basically comes down to money, like almost everything else. Or does it? In many ways the RIN market mimics the stock market. One RIN could be considered the equivalent to a share of stock, both being an intangible value that are able to be traded among wiling participants. However, one unique thing about the RIN market is that it is based on a compliance need rather than an investment interest. This means, that holder of a RIN has two options, based on their position in the Renewable Fuel Standard (RFS). One option is to retire against their obligation if appropriate, the other is to trade to an obligated party. The trading angle is where this lawsuit gets a little interesting.

Around the time the lawsuit was filed, the prices of RINs started to increase. There are many factors that go into RINs increasing, but one such factor was this lawsuit. Valero, being a large player, had entered the market in a different way. This means, RFS participants could be more competitive with the price of their RINs. As I alluded to earlier, RINs are a compliance need rather than an investment interest. The significance of this being, due to the fact that RINs are an instrument of the regulation, procuring RINs for an obligated party is mandatory as opposed to a stock investment which is generally optional. When a large player enters the RIN market with this type of need, the rules of supply and demand begin to more keenly take effect.

Wait, wait just one minute. Doesn’t that mean that RIN owners without obligations, such as traders and blenders can hold obligated parties “hostage” on the market, giving a more competitive market advantage. Well no, actually, not really. If you notice, the facts are that Valero would have had to procure these RINs either way. Had the contracts been performed, Sundive would have sold Valero RINs at a certain price as decided upon between the parties. Many obligated parties have similar arrangements, creating more flexibility in day-to-day operations and allowing for more control over their expenses. The point of this lawsuit isn’t to demonstrate that Valero has additional options besides being “forced” to play the market. Strategic partnerships among obligated parties are common and often times happen as a mechanism of avoiding having to guess at the RIN market.

Will Valero be successful in their lawsuit? Maybe. They certainly seem to have a claim. Does this mean the RIN market will respond to the continuation of this suit? Maybe, but also maybe not. As I stated above, there are several factors and variables in the RIN market, this lawsuit just so happened to be the most prominent at the time. Will Valero be less angry? Welllll…how angry would you be if you were out over $10.1 million? If it were me, I’d have adopted the Hulk as my mascot by now. Time will tell if Valero is successful in their suit.  

Swing and a Miss! EPA Misses Statutory Deadline for Renewable Volume Obligations

Sometimes, it’s perfectly acceptable to be late. You stopped for coffee on your way to work and the line was long, but you needed your morning cup of joe so that people won’t mind it when you speak to them. You’re late, but for a worthy cause. Other times, people completely lose their minds when you’re even the tiniest bit late. EPA currently knows a little bit about this.

By November 30 of any compliance year, EPA is supposed to have released the finalized rule for the Renewable Volume Obligations (RVOs) for the upcoming compliance year. The proposed rule for the RVOs usually comes out in the spring so that the rule can be finalized by the statutory deadline. Yet, even though the RVOs were delivered to the OMB mid-May, the OMB still lists the review of the proposed rule as ongoing, nearly seven months later. Setting RVOs by November 30 is required by statute. However, this year, that deadline came and went, and EPA said…nothing.

Now, to be fair to EPA, this year has been nothing short of interesting, to say the least. Between the global pandemic, small refiner waivers, and an election year, EPA has had their hands full. It would also be unfair to say that delays in the year 2020 are unexpected…just like vaccines and stay-at-home orders. At a visit to Wisconsin last August, Administrator Wheeler stated that he expected to release the RVOs, but he was uncertain as to when that might happen. Administrator Wheeler mentioned that [EPA] was “facing some unusual challenges.” In Administrator Wheeler’s own words, since releasing the 2021 RVOs to the OMB last May, “[t]he entire landscape has changed.”

Ok, so EPA is late pulling together a finalized rule, big deal. Actually, that’s the point, it is a big deal. RVOs serve as a representation of the number of gallons of renewable fuel that need to replace, gallon for gallon, nonrenewable fuel. If you are an obligated party, the RVOs serve as either a representation of the number of gallons that you need to blend to replace the number of nonrenewable fuel gallons that you are responsible for putting on the market or you need to buy RINs to retire against that obligation. If you’re lost as to what this means, please read: Easy Peezy Lemon Squeezy: the Ins and Outs of the Renewable Volume Obligation, written by yours truly.

More to the point, the RVOs drive everything from production of renewable fuel to blending of renewable fuel, to the generation (creation) of RINs. When EPA significantly alters the RVOs, the entire renewable fuel industry is affected, this includes when EPA is late releasing the one thing that serves as a major drive for the industry. Now, I know I am making this sound like the only reason producers and blenders of renewable fuel do their jobs is because of the RVOs and the Renewable Fuel Standard (RFS). It is worthwhile to note that, while those two things are major contributors, they are not the only factors in this decision. However, the industry likes to know what EPA is expecting for the upcoming compliance year, and the RVOs are an excellent benchmark for the industry.

So, how upset is the general public? With everything else going on, they can’t be that mad, right? Well, not to be too emphatic, but RFS participants are about one more fight away from a Taylor Swift-style break up with EPA. They are never ever getting back together. Producers of renewable fuel, specifically ethanol, have faced multiple hardships this year, everything from falling demand due to less travel, to waived gallons from Small Refiner Waivers. Ethanol plants across the nation have either ratcheted down production due to falling demand or have switched to making medical-grade hand sanitizer in the wake of COVID-19. While clean hands are great and all, hand sanitizer doesn’t quite replace the high demand of gallons produced for the transportation market. Further, failing to release the RVOs on time creates greater market uncertainty for RFS participants in a market already not known for stability.

Blenders of renewable fuel have not had an easy 2020 year either. Blenders drive the RFS by blending renewable fuel to replace, gallon for gallon, nonrenewable fuel on the transportation market. Blenders of renewable fuel are also responsible for ensuring RINs flow from the producer to the obligated party. By blending the fuel, renewable fuel blenders allow the RIN to become separated from the gallon of renewable fuel and ultimately traded to an obligated party. The RVOs give blenders an idea of how many gallons, and thereby, how many RINs the market might expect to see. Blenders of renewable fuel have also faced decreases in production of blended fuel due to a decrease of demand and potential supply shortages. Further, like producers, blenders of renewable fuel count on the RVOs as a measure of market certainty. Without finalized RVOs, blenders of renewable fuel may not be aware of how many RINs they will be responsible for getting to market.

Will EPA have a rule soon? Great question. In his statement last August, Administrator Wheeler promised RFS participants that while RVOs will not be released on time, they won’t be two years late. I don’t know about you, but I don’t feel reassured by that statement. But I guess, better late than never, right?

Sinclair v. EPA: When the RFS Looks Like an Existential Crisis

Have you ever taken a moment to think: how did I even get here? This is probably what EPA thinks on a daily basis: how did we get here? Last month, I wrote on the 10th Circuit case where EPA was held accountable for granting small refiner exemptions to entities that didn’t necessarily qualify for the waiver. To be able to have such broad authority, EPA had to get it from somewhere: meet Sinclair v. EPA (2017).

To be fair to you guys, I kind of put the chicken before the egg last month by talking about the 10th Circuit case first. Keep in mind, I’m a lawyer, not an existential crisis counselor. The reason that the 10th Circuit case was so important (besides the obvious), is because of the Sinclair case. Wait, what’s the Sinclair case? I’m so glad you asked…

Before you read any further, just as a friendly reminder, to be a small refinery, you had to be “small” (have a throughput of less than 75,000 barrels per day) and you had to be able to show that compliance with the regulations would result in a “disproportionate economic hardship.”  Under the first iteration of the Renewable Fuel Standard (RFS 1), small refineries could petition EPA for an exemption to the requirements of the RFS through the year 2011. Following the year 2011, small refineries meeting the requisite qualifications could file for an extension of that exemption through the year 2013.

In 2017, Sinclair Refining brought a case before the 10th Circuit. Yes, the same exact circuit that we talked about last month. Sinclair had two small refineries in the state of Wyoming. Sinclair had timely filed and had been granted a small refiner exemption under RFS 1. Sinclair also petitioned EPA for an extension of the original exemption through the year 2013, claiming an economic disproportionate hardship if Sinclair had to comply with the requirements of RFS1. EPA denied this petition and then Sinclair timely filed for a review of that petition with the 10th Circuit. I know this seems like a lot of rigamarole, but you have to understand how we got here.

In the 10th Circuit case, Sinclair argued that there “can be no disproportionate economic hardship unless compliance with the RFS Program is so costly that it will eventually force a small refinery to shut down” and that EPA’s interpretation would cause a threat to the viability of an operation, which was outside the scope of EPA’s authority. Essentially, Sinclair argue that, while a hardship can be burdensome, EPA’s interpretation as requiring a threat to a refinery’s long-term viability was nonsensical with the requirements of the RFS.

In a stunning blow to the RFS, the 10th Circuit granted Sinclair’s petition for review and overturned EPA’s decision to deny Sinclair’s exemption. While there were many issues the 10th Circuit considered, the court’s decision ultimately hinged on the meaning of “disproportionate economic hardship.” The court concluded that “[a]s a matter of common sense, an experience that causes hardship is less burdensome than an experience that threatens ones very existence.” The court went on to say that EPA’s analysis of the Department of Energy’s study as well as other factors was “…morph[ed] into a single question: a threat of closure inquiry” while the EPA was supposed to “…take the holistic evaluation as required by Congress…”

So, why does this matter? I mean it’s just one case in one circuit. It must be an isolated incident that is unlikely to be repeated. Except, that’s not at all how that went. Due to the fact that this case changed the way EPA analyzed Small Refiner Exemption petitions, EPA was able to grant these petitions much more readily than in previous years and have an easy justification for doing so. As we’ve all seen, the over-abundance of the granting of these petitions has led to a fundamental undermining of the RFS. This is also why the 10th Circuit case from last January was such a big deal. By deciding the January case in the way that it did, the 10th Circuit essentially put an “outer limits” on the acceptable way EPA is supposed to grant Small Refiner Exemptions.   Does this mean that the RFS will stopped being undermined by Small Refiner Exemptions and enjoy the same rippling effect as this past 10th Circuit case? Maybe. The RFS can be a tricky place and can be influenced by a variety of factors, court decisions being just one of those many factors. So, what does this all mean in the grand scheme of things? It’s like I told you at the beginning, I’m a lawyer, not an existential crisis counselor.

Preventing Headaches and Heartbreaks: the 10th Circuit Court Decision on Small Refinery Exemptions

There are somethings that just should not be repeated: headaches, heartbreaks…global pandemics, the year 2020…too soon? The 10 Circuit Court case that happened earlier this year is not one of those things.

**DISCLAIMER** If you do not know what a small refinery exemption is or you do not understand what an RVO is, you will not understand this article. There are several articles on this page to help you understand those concepts. Read those articles first and then come back to this one. It’s a good time, I promise.

Sometimes, it’s ok to skip over the facts….just like candidates running for president do. However, just like when it comes time to vote, the facts are really important for you to know. What had happened was, a group of renewable fuel groups (“Biofuels Group”) brought suit against the EPA for granting small refinery exemptions to small refineries who did not meet the qualifications for an exemption. More specifically, the Biofuels Group brought suit against the EPA for granting the following refineries small refinery exemptions:

  • Holly Frontier Cheyenne, LLC (“Cheyenne”): Cheyenne had been granted an exemption for the year 2012 but had not petitioned for an extension of the exemption for the years 2013 and 2014. However, in 2017 Cheyenne petitioned for an exemption for the compliance year 2016. The Department of Energy (“DOE”) recommended to EPA that Cheyenne should not be a granted an exemption. EPA, however, granted an exemption for the compliance year 2016 in full.
  • Holly Frontier Woods Cross Refining, LLC (“Woods Cross”): Woods Cross had never petitioned nor been granted a small refinery exemption for any year. However, in the year 2017, Woods Cross petitioned EPA for an exemption for the compliance year 2016. Woods Cross did not identify as having a disproportionate economic hardship, a requirement to be granted an exemption. DOE recommended the EPA grant Woods Cross a partial exemption, but EPA, in its wisdom, granted a full exemption.
  • Wynnewood Refining Company, LLC (“Wynnewood”): Wynnewood had been granted a blanket exemption for the year 2011 and 2012. However, Wynnewood had not received an exemption since the year 2012. Wynnewood petitioned EPA for an exemption in 2017 for the compliance year 2016. The DOE, noting that Wynnewood’s compliance would “not appear…to threaten the refinery’s economic viability,” recommended a partial exemption. EPA, nonetheless, granted Wynnewood a full exemption for the year 2016.

Why do you care about those facts? Before I answer that, there are a few things you need to keep in mind. As a reminder, for a small refinery exemption to be granted the petitioning refinery needs to be: (1) small (with a through put of less than 75,000 barrels per day) and (2) needs to show that compliance with RFS requirements would result in a disproportionate economic hardship. Additionally, a small refinery does not qualify for an exemption if, after the year 2012, the refinery has not petitioned for an exemption on an annual basis. Now, go back and read the facts again. Note how none of the named refineries had experienced a disproportionate economic hardship nor had they petitioned consistently for an exemption….so in other words, they didn’t qualify for an exemption.

In reviewing this case, the 10th Circuit was overwhelming clear with their sentiments on EPA’s actions. In the court’s own sassy words: “[t]hese ordinary definitions of ‘extension,’ along with common sense, dictate that the subject of an extension must be in existence before it can be extended.” In other words, you can’t grant an extension of something that never existed. The court concluded their sentiments by saying: “[g]ranting extensions of exemptions based at least in part on hardships not caused by RFS compliance was outside the scope of the EPA’s statutory authority.”

Now, back to why you should care about this. In order for EPA to grant full exemptions to any of the named refineries, EPA would have had to blatantly disregard the regulations. While EPA is allowed the authority to grant or deny petitions for small refinery exemptions as they see fit, in doing so, EPA is not allowed to completely disregard the regulations. As the court’s conclusions clearly noted: you can’t just make up the rules. While this is one case in one circuit, the hope is that this will have implications on EPA’s future actions. Perhaps, this decision will keep EPA from having headaches and handing out heart breaks to participants in the renewable fuel standard.

Much Ado About Something: Why Everyone is Yelling About SRE’s

There are some things that people do, and we just fail to understand why. Putting pineapple on pizza or thinking pickles with peanut butter is a good idea, for instance. Sometimes, granting an entity a Small Refiner Exemption (SRE) can be a lot like that. It’s a little weird and a bit strange. In this month’s article, I am going to talk, somewhat briefly, about the “why” portion of SRE’s and, more importantly, what’s all the yelling about?

As I’ve discussed in a previous article, to receive a small refiner exemption, you had to be a small refiner and you had to show a disproportionate economic hardship. There are a few more details you should know, to get those, read Becoming the Outcast: The “What” Portion of the Small Refiner Exemption. You will also want to have a good grasp on the Renewable Volume Obligations (RVOs) and the Renewable Fuel Standard (RFS) before you continue to read. I figured I’d get the disclaimers out of the way from the start.  

So, why all the yelling? We have to start somewhere, so let’s start with what happens to the RIN market when a large number of SRE’s are granted. When an entity is granted an SRE, a portion of the RIN market that would have otherwise been there has been excused. For example, if Small Refiner A applies for and is granted an SRE, it will not need to find RINs to fulfill their obligation. Small Refiner A’s compliance obligation for the applied year has been excused and Small Refiner A will not be held to that obligation. When this is done for a single entity or even a handful of entities, the effect is barely noticeable on the RIN market. It’s basically a single ripple in the large sea of the RIN market. However, when this happens in larger numbers, the effect is more like a tidal wave.

Before we get into talking about how demand affects the RIN market, there’s a couple of things that you need to keep in mind. First, the RIN market is not like the stock market. The RIN market is developed off of a compliance obligation, rather than an investment interest. This means, the thing that drives the market is a regulatory operation rather than an economical consideration. Second, EPA has sole authority in granting or denying an SRE. This means EPA decisions drive the RIN market similarly to the way rumors drive the stock market.

Traditionally, EPA was extremely selective in the number of SREs granted. For example, in 2013, EPA received 29 SRE petitions but only granted 8 of them. EPA granted 8 petitions in 2014 and 7 petitions in 2015. However, in 2016, EPA began granting SREs in much larger numbers. To put this in perspective, in 2016, the EPA granted 19 SREs. These numbers continued to increase with 35 SREs granted in 2017 and 31 granted in 2018. If you would like to take a look at the data for yourself, EPA makes publicly available the number of SREs granted for a given compliance year, as well as other public data.

As you may have noticed by the numbers, EPA seemed to be deliberately less selective in the number of SREs that they granted. Part of this is due to a court case that changed the way EPA evaluated how SREs petitions are analyzed. I’m not going to touch on that case in this article, but I might do so in the future. #suspense. The significance of EPA granting this number of SREs, is the way it affected the RIN market. Again, the RIN market is driven by the compliance obligation, not an investment interest. When EPA exempted tens of thousands of gallons, it essentially took away a portion of the demand, which drove RIN prices down.

Why is RIN prices being driven down a bad thing? This gets really complicated very quickly. Whether RIN prices being driven down is a bad thing is also entirely dependent on the position of the RFS market participant. For blenders of renewable fuel, the entities that allow RINs to flow from the point of generation to retirement, significant decreases in RIN prices make a blending operation less economically feasible. By making blending less economical, blenders will probably not blend as much fuel, which means there will be less RINs available to go to market.

Driving down RIN prices also can be economical harmful to producers of renewable fuel. Producers of renewable fuel look at the RIN market as a indication of demand. For example, if all obligated parties everywhere needed RINs to retire against their obligation, producers would have to ramp up the manufacturing of renewable fuel to meet those needs. If gallons creating an obligation are excused, then the demand for RINs is down, which means the demand for gallons of renewable fuel to blend could also be down.

Now, let’s point out a couple of obvious things. First, in the previous two paragraphs I’m assuming RINs are the only reason blenders blend and producers make renewable fuel, and that’s simply not true. Any well run fuel business probably has multiple revenue streams. The examples of what happens when RIN prices are down are feasible results and have been shown to happen, but are by no means the only reason a blender no longer blends or a producer ratches down production. Second, I’m inherently biased. I work with blenders of all shapes and sizes on a regular basis and I know the trials and tribulations they encounter. From my perspective, RIN prices being driven down is always going to be inherently bad, but you should know there are other sectors of the RIN market, such as refiners, that would not agree with me. The SRE saga is far from over. Just recently, EPA denied all “gap” SRE petitions, which was not an expected move for the renewable fuels industry. Will EPA continue to grant SREs in such large numbers? Your guess is as good as mine

Becoming the Outcast: The “What” Portion of the Small Refiner Exemption

What do car wrecks, hangnails, and Small Refinery Exemptions (SRE) have in common? Nobody likes them. Well, ok, if you’re a participant in the Renewable Fuel Standard (RFS) and not a small refinery, you might not like SREs very much. But why, though? If you’re new to the RFS and you don’t have a good grasp of the industry, you might find all the hulabaloo a bit much. There is a lot that could be said about SREs, but for the moment, let’s discuss what they are first.

There are two pieces to SRE’s. For the first piece, to even be able to apply for the exemption, you have to be a small refinery. A small refinery is defined by the regulations as: “a refinery for which the average aggregate daily crude oil throughput (as determined by dividing the aggregate throughput for the calendar year by the number of days in the calendar year) does not exceed 75,000 barrels.” That’s kind of a mouthful, right? Once you break it down, it’s actually pretty simple. The term throughput means the amount of crude oil that is refined into a consumable product such as gasoline, diesel, or jet fuel. Essentially, if you break down the definition, to be considered “small,” a refinery cannot produce (refine) more than 75,000 barrels worth of gasoline, diesel, or jet fuel for any given year. Makes it a lot easier to understand when you break it down, huh?

Now, the second piece is the exemption portion . As the name might imply, the exemption is an exception to the requirement of Obligated Parties (OPs) to have to fulfil their Renewable Volume Obligations (RVOs) by retiring RINs. If you don’t understand what any of that means, read Easy Peezy Lemon Squeezy: The Regulatory Purpose of the RVOs, written by yours truly. While that is absolutely a shameless plug for you to read my articles, it is also a good way for you to understand the exemption portion this equation. If you don’t understand that portion, the rest of this article might be a little abstract.

To fully understand what an SRE is, you need to understand a bit of regulatory history. It’s not as boring as it sounds, I promise. When the first version of the RFS was put into practice (RFS1), small refiners were exempt from the regulatory requirements of the RFS. As long as you were a small refinery in the calendar year 2004, the small refinery could apply for an exemption from the requirements from the time of application (which had to be submitted by August 31, 2007) until December 31, 2010. In addition to the initial exemption, the small refinery could petition the EPA Administrator for an extension of that exemption for an additional 2 years. To qualify for the extension, the small refinery had to prove that compliance with the requirements of the RFS would result in an “disproportional economic hardship.” I get it, you want to know what that means, but that’s a longer discussion than you might be prepared for, so for the moment, lets get back to history.

When RFS2 began, many small refiners were still struggling from the RVO requirements of the RFS. To ensure that they would be able to maintain their RVOs in the future, RFS 2 reiterated SREs. Essentially, the regulations gave SREs a bit of a remix by changing the dates, but that’s about all that changed. Any small refinery that had applied for an SRE had to prove that they were a small refinery for the calendar year 2006, instead of 2004. Again, the small refinery could apply for an extension of the exemption for an additional 2 years as long as it could show a “disproportionate economic hardship.” The EPA Administrator, whether the petition was for an original exemption under RFS 1 or RFS 2 could take no longer than 90 days to issue a decision on the petition. If the EPA Administrator granted the petition, the small refiner was granted an exemption to the RVO requirement and would not have to fulfill their obligation. If the Administrator denied the petition, the small refiner was on the hook for their compliance obligation.

All good things have to come to an end. For small refiners, that ending was on December 31, 2012. By that date, all original exemptions and initial extensions would have run. However, the small refiner could still get around the RVOs. Beginning in 2013, small refiners had to petition for an extension of the exemption every year. Keep in mind, this means the small refiner had to have been granted an exemption in the first place. Following the December 31, 2012 deadline, if the small refiner had let an extension from previous compliance years lapse or had never applied for an SRE in the first place, the small refiner could not petition for an extension for an SRE. This changed the landscape a bit on SREs for small refiners. Since RVOs are determined on an annual basis, the small refiner had to know much more quickly than in previous years whether or not they could meet their RVOs. The current SRE is more of an extension of the original exemption under RFS 1. Admittedly, this is more a question of schematics, but the application can be important in the current discussion surrounding SREs in the renewable fuel industry. I’ll write more on that at another time. I know, I know, the suspense is killing you!

So, to recap, the SRE is an exemption to the RVO requirements of the RFS. To be eligible for an SRE, the refiner had to be considered a small refiner and had to petition for an exemption by the appropriate compliance deadline. Exactly! See? That wasn’t so bad!

Save Your Receipts! The Inside Scoop on Product Transfer Documents

Do you ever go into a store and completely forget your grocery list? You walk out with a 9-foot receipt and items that you probably didn’t need. Or is that just me? Anyway, that 9-foot receipt is basically what the renewable fuel industry would call a Product Transfer Document (PTD). It works a lot like a receipt for a RIN transaction, and it’s required by the regulations. #bonus.

Unlike my shopping experiences, a PTD can fit on a single page. Convenient, right? Every PTD is required to contain the following information:

  • The name and address of the transferor and transferee
  • The transferor’s and transferee’s EPA company registration numbers
  • The volume of renewable fuel that is being transferred, if any
  • The date of the transfer
  • The quantity of RINs being traded
  • The D code of the RINs
  • The RIN status (Assigned or Separated)
  • The RIN generation year
  • The associated reason for the sell or buy transaction (e.g., standard trade or remedial action).

It looks a lot like the kind of information contained on receipt, doesn’t it? If you keep in mind that a PTD and a receipt have a lot in common, it becomes a lot easier to identify. Why might a PTD be difficult to spot? The regulations do not have a required format for PTDs, so companies can provide that information in a manner that is the most convenient for them. Sometimes it is far more useful to know what information you’re looking for rather than where to look for it.

So, if you were to look for a PTD, where should you look for it? …great question. Many companies include the information found on a PTD within their invoice. The RIN information, such as how many RINs are being transferred, whether the RINs are assigned or separated, and the RIN year, can be found in various spots on the invoice. In other cases, companies abandon the treasure hunt and simply include an additional page with the invoice, clearly labeled Product Transfer Document. It’s really nice when that happens. Want to see a picture of what you’re looking for? Or how about this one? #picsoritdoesntcount.

Great. So I’ve got this document that may or may not be labeled PTD and yeah… Is it actually necessary to keep? Here’s the point where you want to pay really close attention: Do. Not. Discard. PTDs. Why? Well, for two reasons. First, the regulations say that you must keep all PTDs for at least 5 years. Second, because when it comes time to complete an annual attest engagement, your company’s auditors are going to want to see those. What happens if you lost them or can’t find them? The PTD police come to get you. #kidding. A PTD is evidence that a transaction occurred. If you lose a PTD or can’t find one, reach out to your supplier sooner rather than later. They should have a copy of it. Ensuring that you have all your PTDs before attest engagement season will make your compliance work a lot easier.

The Biofuels Trilogy:  Renewable Volume Obligations, RINs and the Renewable Fuel Standard

All the good things come in threes: the Three Amigos, the Hunger Games trilogy, three-for-one specials. I’m sure there’s more but, you get the picture. When the Renewable Fuel Standard (RFS) mandated the requirement of obligated parties to fulfill their obligation by retiring RINs, it created a market where RINs can be bought and sold among RFS participants. Driving this market are the annually-set Renewable Volume Obligations (RVOs), which can increase an obligated party’s need for RINs.

In case you have no idea what that means, an obligated party incurs an obligation from the type of business activity they perform. If you’re still lost, read my prior article Easy Peezy Lemon Squeezy: The Ins and Outs of the Renewable Fuel Standard. #shamelessplug. Keep in mind, RINs aren’t magical beings that mysteriously get traded, they’re created (generated) and attached to gallons of renewable fuel. Once the gallon of renewable fuel has been blended, the attached RIN is deattached from the gallon and is free to be traded. Now, the stuff that’s coming up is going to focus on the RFS, RVOs and RINs from a market angle, but it will be an overview, so you don’t need a degree in economics to understand it.

Ok, the first thing you need to understand is a little background. Don’t groan, I promise not to make this like your high school history class. When the RFS was first established by the Energy Policy Act (EPACT) in 2005, it brought with it a new market opportunity – that of the RIN trade. In many ways, the RIN trade appeared to act similarly to the stock market by allowing RFS participants to trade an intangible credit. The biggest obvious difference between the two is that the stock market gives the investor a market share in a company and a RIN is a component of a compliance requirement.

To be clear, this market differs from a commodities market, because the existence of the market itself is based on the production and blending of renewable fuel. RINs are, more or less, a representation of how many gallons are blended to be transportation fuel. I don’t want you to get the impression that RINs are spontaneously formed and then traded. RINs don’t just suddenly appear out of nowhere, and if they do, they’re probably fraudulent.

Speaking of fraudulent, it was pretty easy to manipulate and scam the RIN market in the beginning. My favorite story is of a small blending operation in New England. The owner never blended fuel, but flooded the market with fraudulent RINs, made millions of dollars, and then disappeared with his family to Argentina to live a life of luxury. #lifeplan. While that story is one of my favorites, there are dozens more just like it. After more instances like this popping up, the federal government decided that maybe something should be done and passed the Energy Independence and Security Act (EISA) in 2007. After EISA, RIN market security was greatly improved and there are only rare instances of invalid RINs.

So, what’s the second thing that you need to know? It’s that I’m awesome…and that, as a consequence of how the RFS was created, the RVOs drive RIN prices and RIN demand. While the RVOs dictate how many gallons of renewable fuel need to be blended to make transportation fuel, they also dictate how many RINs an obligated party will need to satisfy their obligation. Predictably, the higher the RVOs are set, the more RINs will be needed by an obligated party. It is this sort of push and pull that drives the RIN market. When RVOs are raised, obligated parties have more of a need for RINs and the RIN market will adjust to that demand.

Now, let‘s be clear about a couple of things. First, production will adjust to meet demand, meaning lower RVOs could mean less RINs on the market. Producers and blenders of renewable fuel will adjust their yearly targets to reflect the fact that the RVOs have decreased which means there is less of a regulatory need or demand for renewable fuel and, as a consequence, RINs. Less demand means the RIN prices will see a decline in value. It is possible that those type of RINs, we’ll call them “excess” RINs, hold value in the next compliance year if an obligated party uses prior year RINs, but that also assumes the RVOs are not re-lowered. It’s like the quarterback tradition for the Chicago Bears. The next one could be better than the last…or not. Second, as long as the RFS continues to exist, the need for RINs will also continue to exist. RINs are a compliance necessity, rather than a business interest. This means a RIN market is more of a “sure thing.” Keep in mind, the RFS is a creation of the federal legislature and as a consequence, the RFS is subject to policy decisions and measures. However, unless the RFS disappears, RINs will still need to be obtained by obligated parties, and compliance measures will still need to be observed.

Will the RIN market react to things like rumors and federal policy changes? Absolutely. Afterall, the RIN market is still a market. There are companies that trade based on those rumors and federal policy changes. The trading habits that typically follow the stock market or a commodities market are certainly mimicked on the RIN market. However, there are also companies that procure RINs solely on the basis of a compliance need. In this way, the RIN market is a beast unto itself inherently existing as a commodities market or a compliance need, depending on the participant.

The RIN market also requires that all regulatory components be present. The RFS cannot exist, from the standpoint of procedure, without the mechanisms of RINs to make it work. The RVOs can’t be satisfied if the RINs don’t exist and RINs wouldn’t exist if the RFS didn’t create the RVOs. Having one without the others would be like eating popcorn without butter and salt: completely pointless. The RFS, RVOs, and RINs have to exist in a threesome to create the RIN market.

Its just like I told you at the beginning: all good things come in threes.

Easy Peezy Lemon Squeezy: The Ins and Outs of the Renewable Volume Obligation 

After reading the title to this article, I suppose you’re expecting to see a lot of regulatory and legal hieroglyphics. Plot twist. I’m going to explain the regulatory purpose of the Renewable Volume Obligation (RVO) in a way that makes sense and can include you in the industry conversation like the cool kid you are. #trendworthy.

So what is the RVO and why should you care? Overall, the Renewable Volume Obligation is the volume of renewable fuel, in gallons, that must be blended to produce transportation fuel. On an individual level, the RVO is the regulatory duty (obligation) an importer or refiner of nonrenewable fuel (e.g., gasoline, diesel) incurs as a result of their day-to-day business activities. By mandating this obligation, the federal government is attempting to disincentivize the continued refining and use of fossil fuels (nonrenewable fuels, such as gasoline and diesel), to be made into transportation fuel. Refiners and importers, as a result of their day-to-day business activities, go against the federal government’s wishes and, as a result, have to pay for it. The businesses that incur an obligation are called, predictably, obligated parties. Makes a lot of sense, right? An obligated party incurs…wait for it…an obligation. See? This isn’t that hard.

By now you’re thinking that an obligation needs satisfied right? Right. EPA only requires the very small sacrifice of your first born. Totally joking, EPA is not in the business of taking other people’s children. In order to incentivize the production and blending of renewable fuels, the federal government requires that the obligated party (remember, that’s the company that incurred the obligation) to replace, gallon for gallon, the volume of nonrenewable transportation fuel with renewable transportation fuel. The way this works is an obligated party has to obtain intangible credits called Renewable Identification Numbers (or RINs) and retire (essentially, count against) their incurred obligation. There are, very generally, two different approaches to accomplishing this regulatory requirement: (1) a business can produce and blend renewable fuel, separate the RIN and retire it, keeping the entire operation to themselves or (2) purchase the RINs on an individual basis and retire them, without engaging in any actual blending of renewable fuel.

You’re wondering what a RIN is, aren’t you? A RIN is an intangible credit that is attached to a gallon of renewable fuel. While you can’t touch or see a RIN, think of it like a sticker on the side of the gallon. Once that gallon of renewable fuel is blended with gas or diesel to be used for transportation fuel, the RIN is detached, or separated, from the gallon of renewable fuel (like peeling the sticker off the side of the gallon). As you might expect, the regulations refer to a RIN that is no longer attached to a gallon of renewable fuel as a separated RIN. The separated RIN can then be traded among blenders and obligated parties, until it is used to retire against an obligation. You can do this, I promise! At least that’s what my parents keep telling me about remaining gainfully employed and out of their basement. #millenialproblems.

So to recap, an obligated party incurs an obligation that has to be satisfied. The only way to satisfy that obligation is to retire the things called RINs against that obligation. RINs can be traded among different participants but only once they have been separated from the gallons of renewable fuel. Now you’re cooking with gas! …or biodiesel…

Elementary, Dear Watson: A Beginner’s Guide to the Renewable Fuel Standard

What the heck is a RIN? How does the Renewable Fuel Standard actually work? When I first started with RINAlliance, I remember thinking it sounded like having an imaginary friend: beneficial sure, but people looked at you funny when you talked about it. To this day, my parents aren’t sure what I do is real, but since I’m not living out of their basement, they’re fine with it. #millenialproblems.

I only have two pages, so I have to dive right in. The Renewable Fuel Standard (RFS) was the grandchild of the much bigger and more well-known Clean Air Act from the 1970’s…way before I was born. The RFS is, essentially, a system set in place by the federal legislature designed to incentivize the production and integration of renewable fuels into the transportation marketplace. To facilitate this goal, the federal legislature passed the Energy Policy Act of 2005 which gave the biofuels industry the first iteration of the RFS (“RFS1”). Then, in 2007, to address some industry concerns, the federal legislature passed the Energy Independence and Security Act (EISA), which gave the industry the second version of the RFS (“RFS2”). This second version is still the most current version of the RFS and is known to most as RFS2.

Cool, cool, cool…so now that we’ve made it passed the history lesson, how does this whole thing work? Well, it’s pretty easy to understand. The RFS requires that a certain number of gallons of renewable fuel made from various types of feedstocks be infused into the transportation market. This requirement is collectively known as the Renewable Volume Obligations (RVOs). Each year, U.S. EPA sets the RVOs as a benchmark for the production and use of renewable fuel. The RVOs help drive the fuels industry in terms of production, blending, and marketing renewable fuels.

While EPA sets annual RVOs for the industry as a whole, every entity engaging in a business activity that runs contrary to the purpose of the RFS incurs an individual RVO. These types of entities that engage in this type of activity are known as Obligated Parties. This is pretty easy to remember because an Obligated Party, as a result of their business activities incurs…wait for it…an obligation. I told you this was easy to understand!

This is where RINs come into play. A RIN is an intangible credit that is used as a measure of compliance. When a gallon of renewable fuel is produced, a RIN is generated (created) and then assigned to the gallon of renewable fuel (termed an “assigned” RIN). In this way, each assigned RIN is a representation of a gallon of renewable fuel that has been produced. Think of it like a sticker being attached to the gallon of renewable fuel. When that gallon of renewable fuel is blended to produce transportation fuel, the RIN is separated from the gallon (termed “separated” RIN) and able to be traded among RFS participants. In essence, once that gallon has been blended, the RIN “sticker” is peeled off the side of the gallon to be freely traded.

But wait! There’s more! Obligated Parties (remember, business entities incurring an obligation), need RINs to show that they have met their obligation for the compliance year. Obligated Parties do this by retiring (taking out of market) RINs against their obligation. Generally speaking, there are two ways that an obligated party can do this. First, they can blend renewable fuel to produce transportation fuel themselves. Alternatively, as a second option, they can purchase RINs on the open market and retire them against their obligation. In both scenarios, RINs are used to indicate an Obligated Party has met their annual compliance obligation. In this way, RINs are a direct mechanism of compliance. See? I told you this wasn’t that difficult.