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Americans for Clean Energy v. Environmental Protection Agency

United States Court of Appeals, District of Columbia Circuit

July 28, 2017

Americans for Clean Energy, et al., Petitioners
v.
Environmental Protection Agency and E. Scott Pruitt, Administrator, Respondents E.I. du Pont de Nemours and Company, et al., Intervenors

          Argued April 24, 2017

         On Petitions for Review of Final Action of the United States Environmental Protection Agency

          Seth P. Waxman argued the cause for petitioners Americans for Clean Energy, et al. With him on the briefs were Edward N. Siskel, David M. Lehn, Saurabh Sanghvi, Andrew R. Varcoe, Gary H. Baise, and Matthew W. Morrison. Mark C. Kalpin and Robert J. McKeehan entered appearances.

          David B. Salmons argued the cause for petitioner National Biodiesel Board. With him on the briefs were Bryan M. Killian and Sandra P. Franco.

          Jerome C. Muys, Jr. was on the brief for amici curiae American Soybean Association, et al., in support of petitioners Americans for Clean Energy, et al., and National Biodiesel Board.

          Robert A. Long, Jr. argued the cause for Obligated Party Petitioners on the cellulosic biofuel and biomass-based diesel issues. With him on the briefs were Kevin F. King, Stacy R. Linden, Thomas A. Lorenzen, Robert J. Meyers, David Y. Chung, Richard S. Moskowitz, Thomas J. Perrelli, David W. DeBruin, and Matthew E. Price.

          Samara L. Kline argued the cause for Obligated Party Petitioners on the point of obligation issue. With her on the briefs were Evan A. Young, Shane Pennington, Lisa M. Jaeger, Richard Alonso, LeAnn M. Johnson, Albert Ferlo, Thomas J. Perrelli, David W. DeBruin, Matthew E. Price, Richard S. Moskowitz, and Thomas A. Lorenzen. Krista Hughes and Clara G. Poffenberger entered appearances.

          Suzanne Murray, Jeremy Kernodle, and Alec Zacaroli were on the brief for amicus curiae Small Retailers Coalition in support of Obligated Party Petitioners on the point of obligation issue.

          Lee M. Smithyman was on the brief for amicus curiae CVR Energy, Inc., in support of Obligated Party Petitioners on the point of obligation issue.

          Samara M. Spence, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief were John C. Cruden, Assistant Attorney General at the time the brief was filed, and Lisa M. Bell, Attorney.

          Thomas A. Lorenzen argued the cause for Obligated Party Respondent-Intervenors. With him on the brief were Robert J. Meyers, David Y. Chung, Richard S. Moskowitz, Robert A. Long, Jr., Kevin F. King, Stacy R. Linden, Samara L. Kline, Evan A. Young, Shane Pennington, Lisa M. Jaeger, Richard Alonso, David W. DeBruin, Thomas J. Perrelli, and Matthew E. Price.

          Seth P. Waxman argued the cause for Respondent-Intervenors Americans for Clean Energy, et al. With him on the brief were Edward N. Siskel, David M. Lehn, Saurabh Sanghvi, Andrew R. Varcoe, Gary H. Baise, and Matthew W. Morrison.

          Bryan M. Killian, Sandra P. Franco, and Daniel C. Taylor were on the brief for intervenors E.I. du Pont de Nemours and Company and National Biodiesel Board in support of respondent. David B. Salmons entered an appearance.

          Before: Brown, Kavanaugh, and Millett, Circuit Judges.

          OPINION

          Kavanaugh, Circuit Judge

         The Clean Air Act's Renewable Fuel Program requires an increasing amount of renewable fuel to be introduced into the Nation's transportation fuel supply each year. See 42 U.S.C. § 7545(o). By mandating the replacement - at least to a certain degree - of fossil fuel with renewable fuel, Congress intended the Renewable Fuel Program to move the United States toward greater energy independence and to reduce greenhouse gas emissions.

         EPA is the federal agency primarily responsible for implementing the Renewable Fuel Program's requirements. Congress has directed EPA to annually publish renewable fuel requirements that apply to certain participants in the transportation fuel market. In 2015, EPA promulgated a Final Rule setting several renewable fuel requirements for the years 2014 through 2017. In this set of consolidated petitions, various organizations, companies, and interest groups challenge that EPA Final Rule on a number of grounds. Some argue that EPA set the renewable fuel requirements too high. Others argue that EPA set the renewable fuel requirements too low.

         We reject all of those challenges, except for one: We agree with Americans for Clean Energy and its aligned petitioners (collectively referred to as "Americans for Clean Energy") that EPA erred in how it interpreted the "inadequate domestic supply" waiver provision. We hold that the "inadequate domestic supply" provision authorizes EPA to consider supply-side factors affecting the volume of renewable fuel that is available to refiners, blenders, and importers to meet the statutory volume requirements. It does not allow EPA to consider the volume of renewable fuel that is available to ultimate consumers or the demand-side constraints that affect the consumption of renewable fuel by consumers. We therefore grant Americans for Clean Energy's petition for review of the 2015 Final Rule, vacate EPA's decision to reduce the total renewable fuel volume requirements for 2016 through use of its "inadequate domestic supply" waiver authority, and remand the rule to EPA for further consideration in light of our decision. We otherwise deny the petitions for review.

         I

         A

         In 2005, Congress passed and President George W. Bush signed the Energy Policy Act. Pub. L. No. 109-58, 119 Stat. 594 (2005). Among other things, that Act established the Clean Air Act's Renewable Fuel Program. Id. § 1501, 119 Stat. at 1067-76 (codified as amended at 42 U.S.C. § 7545(o)). In 2007, Congress and President Bush amended the Renewable Fuel Program as part of the Energy Independence and Security Act. See Pub. L. No. 110-140, §§ 201-202, 121 Stat. 1492, 1519-28 (2007) (codified at 42 U.S.C. § 7545(o)). As amended, the Renewable Fuel Program requires that increasing volumes of renewable fuel be introduced into the Nation's supply of transportation fuel each year. Congress enacted those requirements in order to "move the United States toward greater energy independence and security" and "increase the production of clean renewable fuels." Id. preamble, 121 Stat. at 1492. Congress has vested EPA with primary responsibility for administering the Renewable Fuel Program.

         As relevant here (and at the risk of oversimplification), there are six categories of actors in the renewable fuel market: (i) refiners, who manufacture conventional gasoline and diesel; (ii) renewable fuel producers, who produce fuels generated from renewable biomass; (iii) importers, who import conventional gasoline, diesel, and renewable fuels; (iv) blenders, who mix renewable fuels with conventional gasoline and diesel to create blends of more energy-efficient transportation fuel for use in vehicles; (v) retailers, who purchase the blended transportation fuel and sell it to consumers at gas stations; and (vi) consumers, who purchase transportation fuel for their vehicles at gas stations. Some actors in the market are vertically integrated, meaning that a refiner, for example, may also operate blending facilities or fueling stations. Many market actors are not vertically integrated, however.

         The Renewable Fuel Program statute contemplates that certain participants in the transportation fuel market - namely, "refineries, " "blenders, " and "importers" - will be required to satisfy annual "renewable fuel obligation[s]." 42 U.S.C. § 7545(o)(3)(B)(ii). To date, however, EPA has applied the renewable fuel obligations only to refiners and importers - not to blenders. See 40 C.F.R. § 80.1406(a)(1). When we refer to "obligated parties" in this opinion, we are referring to refiners and importers. To satisfy the renewable fuel obligations, each refiner and importer must ensure that a certain amount of renewable fuel is introduced into the Nation's transportation fuel supply. Each refiner and importer's renewable fuel obligation varies depending on how much fossil-based gasoline or diesel fuel it produces or imports.

         The renewable fuel obligations applicable to refiners and importers mandate the introduction of four categories of renewable fuel into the transportation fuel supply. Those categories are: (i) cellulosic biofuel; (ii) biomass-based diesel; (iii) advanced biofuel; and (iv) total renewable fuel. 42 U.S.C. § 7545(o)(2)(B)(i)(I)-(IV). Those four fuel categories vary with respect to the renewable biomass sources from which they are derived and their greenhouse gas emissions. See id. § 7545(o)(1)(B), (D), (E), (J) (defining "advanced biofuel, " "biomass-based diesel, " "cellulosic biofuel, " and "renewable fuel"). The statutory categories of fuel types are "nested, " meaning that cellulosic biofuel and biomass-based diesel are kinds of advanced biofuel, and advanced biofuel in turn is a kind of renewable fuel that may be credited toward the total renewable fuel obligation. For example, if one million gallons of cellulosic biofuel are blended into the fuel supply, the statute allows those one million gallons to be credited toward the advanced biofuel and total renewable fuel obligations in addition to the cellulosic biofuel obligation. See Monroe Energy, LLC v. EPA, 750 F.3d 909, 912 (D.C. Cir. 2014).

         EPA has the responsibility to promulgate rules informing obligated parties (refiners and importers) of their annual renewable fuel obligations. See 42 U.S.C. § 7545(o)(3)(B)(i)-(ii). To do so, EPA first determines the annual volume requirement - also known as the "applicable volume" - for each category of renewable fuel. Id. § 7545(o)(2)(B). The annual volume requirement represents the total volume of renewable fuel that must be sold or introduced into the Nation's transportation fuel supply in a given year. See Monroe Energy, 750 F.3d at 912.

         The statute contains tables that set forth the annual volume requirements for each category of renewable fuel. See 42 U.S.C. § 7545(o)(2)(B)(i). The ranges of years covered by the tables differ depending on the fuel type. For those years not covered by the statutory tables, EPA must calculate the annual volume requirements in the first instance. See id. § 7545(o)(2)(B)(ii). The statute requires EPA to determine those volume requirements, "in coordination with the Secretary of Energy and the Secretary of Agriculture, based on a review of the implementation of the program" as well as an analysis of several factors identified by statute. Id. EPA must promulgate the volume requirements it establishes for years not covered by the statutory tables "no later than 14 months before the first year" in which the volume requirements will apply. Id.

         Several statutory provisions guide EPA's determination of the annual renewable fuel volume requirements. Some provisions either require or allow EPA to lower the statutory volume requirements in specified circumstances. Three of those provisions are relevant to this case.

         First, the "general waiver provision" allows EPA to reduce the statutory volume requirements in two circumstances. EPA may invoke the general waiver provision (i) if EPA determines that "implementation of the requirement would severely harm the economy or environment of a State, a region, or the United States" or (ii) if EPA determines that "there is an inadequate domestic supply." Id. § 7545(o)(7)(A).

         Second, another provision sets forth procedures EPA must follow when setting the cellulosic biofuel volume requirement. EPA must determine the "projected volume" of cellulosic biofuel that will be produced in a given compliance year. Id. § 7545(o)(7)(D)(i). If EPA's projection falls short of the statutory volume requirement for cellulosic biofuel, EPA has no choice: It "shall reduce" the cellulosic biofuel statutory volume requirement to EPA's volume projection. Id.

         Third, a reduction to the cellulosic biofuel volume requirement triggers the "cellulosic waiver provision." Under that provision, when EPA must reduce the cellulosic biofuel volume requirement due to its volume projections for cellulosic biofuel, the agency "may also reduce" the advanced biofuel and total renewable fuel volume requirements "by the same or a lesser volume" as the cellulosic biofuel reduction. Id.

         After EPA determines the volume requirements for the various categories of renewable fuel, it has a "statutory mandate" to "ensure[]" that those requirements are met. Id. § 7545(o)(3)(B)(i); Monroe Energy, 750 F.3d at 920. EPA fulfills that mandate by translating the annual volume requirements into "percentage standards." The percentage standards inform each obligated party of how much renewable fuel it must introduce into U.S. commerce based on the volumes of fossil-based gasoline or diesel it imports or produces. See Monroe Energy, 750 F.3d at 912. The percentage standards represent the percentage of transportation fuel introduced into commerce that must consist of renewable fuel. Id. If each obligated party meets the required percentage standards, then the Nation's overall supply of cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel will meet the total volume requirements set by EPA.

         For present purposes, it is sufficient to understand that the percentage standards are used by obligated parties (refiners and importers) to calculate their individual compliance obligations under the Renewable Fuel Program. By statute, EPA is required to promulgate the percentage standards for a given year no later than November 30 of the preceding calendar year. See 42 U.S.C. § 7545(o)(3)(B)(i).

         Once EPA issues a rule informing obligated parties (refiners and importers) of their renewable fuel obligations, it is up to the obligated parties to comply with the statute. But obligated parties need not themselves introduce renewable fuel into transportation fuel to comply with their renewable fuel obligations. Rather, to facilitate flexible and cost-effective compliance with the Renewable Fuel Program's requirements, Congress directed EPA to establish a "credit program" through which obligated parties can acquire and trade credits and thereby comply with the statute. Id. § 7545(o)(5) (capitalization altered); see also Monroe Energy, 750 F.3d at 912.

         The credits in the trading program established by EPA are known as "RINs" - short for "Renewable Identification Numbers." Monroe Energy, 750 F.3d at 913; see also 40 C.F.R. § 80.1401. To simplify for present purposes, each batch of renewable fuel that is produced or imported for use in the United States is assigned a unique set of RINs "that correspond to the volume of ethanol-equivalent fuel gallons in that batch." Monroe Energy, 750 F.3d at 913. As relevant here, RINs ordinarily remain attached to the fuel until the fuel is purchased by an obligated party - that is, by a refiner or importer - or blended into a transportation fuel. See 40 C.F.R. § 80.1429(b)(1)-(2). At that point, the RINs become "separated" from the associated volumes of renewable fuel. Id. § 80.1429(b). Once separated, RINs may be retained by the party who possesses them or sold or traded on the open RIN market.

         Obligated parties (refiners and importers) comply with their renewable fuel obligations by accumulating or purchasing the requisite number of RINs and then "retiring" the RINs in an annual compliance demonstration with EPA. Monroe Energy, 750 F.3d at 913 (citing 40 C.F.R. § 80.1427(a)). If an obligated party has more RINs than it needs to meet its renewable fuel obligation, the obligated party may sell or trade the extra RINs or instead choose to "bank" the RINs for use in the next compliance year. Id.; see also 42 U.S.C. § 7545(o)(5)(B); 40 C.F.R. §§ 80.1425-29. RINs "banked" by an obligated party for use in the subsequent compliance year are known in the industry as "carryover" RINs. If, by contrast, an obligated party does not have enough RINs to meet its renewable fuel obligation, it may: (i) attempt to purchase any RINs it needs on the open RIN market; (ii) use carryover RINs it has from the prior year to meet some portion of its obligation; or (iii) carry a renewable fuel deficit forward into the next compliance year, provided that some conditions are met. See 42 U.S.C. § 7545(o)(5)(D); 40 C.F.R. § 80.1427(b); see also Monroe Energy, 750 F.3d at 913.

         B

         In December 2015, EPA promulgated the Final Rule that is under review in this case. See Renewable Fuel Standard Program: Standards for 2014, 2015, and 2016 and Biomass-Based Diesel Volume for 2017, 80 Fed. Reg. 77, 420 (Dec. 14, 2015) (hereinafter Final Rule). The Final Rule, which followed a proposed rule issued by EPA in June 2015, established volume requirements and the resulting percentage standards for the years 2014, 2015, and 2016 for all four categories of renewable fuel. See id. at 77, 422 tbl.I-1, 77, 512 tbl.V.B.3-2. The Final Rule also set the biomass-based diesel volume requirement for the year 2017. See id. at 77, 422 tbl.I-1.

         EPA began its analysis in the Final Rule by explaining the competing concerns implicated by the Renewable Fuel Program's requirements. EPA noted that the "fundamental objective" of the Renewable Fuel Program "is clear: To increase the use of renewable fuels in the U.S. transportation system every year through at least 2022." Id. at 77, 421. According to EPA, Congress's decision in the statute "to mandate increasing and substantial amounts of renewable fuel" use "clearly signals" that Congress intended "to create incentives to increase renewable fuel supplies and overcome constraints in the market." Id. at 77, 423.

         EPA noted that the Renewable Fuel Program's requirements were "readily achieved" in the few years after Congress created the program in 2005 and amended it in 2007. Id. That was due in large part to the fact that the industry had the capacity to produce - and the market had the capacity to consume - increasing quantities of ethanol. Id. But by 2014, ready compliance with the statutory volume requirements was no longer possible. That is because the industry hit the "E10 blendwall": an "infrastructure and market-related constraint on ethanol demand" that "arises because most U.S. vehicle engines were not designed to handle gasoline consisting of more than 10 percent ethanol." Monroe Energy, 750 F.3d at 913-14. Put differently, a few years into the amended Renewable Fuel Program, the supply of ethanol was much greater than the demand in the market.

         Citing the E10 blendwall problem, EPA explained that obligated parties must increasingly rely on "sustained growth in the development and use of advanced, non-ethanol renewable fuels" (referred to as advanced biofuels) to meet their renewable fuel obligations. Final Rule, 80 Fed. Reg. at 77, 423. However, EPA further noted that there were significant "real-world constraints" on the market's ability to consume increasing volumes of advanced biofuel. Id. at 77, 422. Those constraints, according to EPA, meant that "the amount of renewable fuel that can be produced and imported is larger than the volume that can be consumed." Id. at 77, 423. EPA cited those demand-side constraints as evidence that "[t]rying to force growth" at the rates set by the statutory volume requirements would "prove infeasible." Id.

         In the Final Rule, EPA therefore adopted an approach that it believed properly balanced its statutory duty to "drive growth" in the supply of renewable fuels with the "real-world constraints" on the market's ability to produce and consume renewable fuels. Id. at 77, 422-23.

         To start, EPA acknowledged that its Final Rule was late given EPA's statutory deadlines. As relevant here, EPA did not meet the statutory deadlines for issuing the 2014 or the 2015 percentage standards or for issuing any of the biomass-based diesel volume requirements. Id. at 77, 430. EPA argued that, despite its delay, it could permissibly promulgate all of the standards and requirements in the Final Rule. See id.

         As support for that conclusion, EPA cited this Court's decisions in National Petrochemical & Refiners Association v. EPA, 630 F.3d 145 (D.C. Cir. 2010), and Monroe Energy, LLC v. EPA, 750 F.3d 909 (D.C. Cir. 2014). EPA asserted that, under those decisions, it had statutory authority to issue the late requirements. EPA also asserted that it had exercised its statutory authority reasonably by mitigating any unfair or retroactive effects of the late rule. EPA claimed that it had done so in part by: (i) setting the 2014 and 2015 volume requirements based on the actual volumes of renewable fuel that were introduced and available for compliance with the renewable fuel volume obligations during those years and (ii) extending the 2014 and 2015 compliance deadlines. See Final Rule, 80 Fed. Reg. at 77, 430-31, 77, 491-92.

         Because EPA concluded that its lateness did not deprive it of authority to act, EPA proceeded with the task of setting the annual volume requirements. With respect to cellulosic biofuel, EPA projected that the volume of cellulosic biofuel produced in the year 2016 would fall short of the statutory volume requirement. See id. at 77, 508 tbl.IV.F-4. As required by the statute, EPA reduced the cellulosic biofuel volume requirement to match its projection. See id. at 77, 499 tbl.IV-1. EPA also promulgated biomass-based diesel volume requirements for 2014 through 2017. Id. at 77, 422 tbl.I-1; see also id. at 77, 496 tbl.III-D.5-1.

         EPA also set volume requirements for advanced biofuel and total renewable fuel. In approaching that task, EPA explained its view that the volume requirements should reflect the amount of total renewable fuel and advanced biofuel that could be incorporated into the market given the "real-world constraints" on both the supply of and demand for renewable fuel. Id. at 77, 422; see also id. at 77, 426, 77, 431-39. For purposes of determining the available supply of renewable fuel, EPA considered only the actual volumes of renewable fuel both introduced and available for compliance with the statutory requirements in a given year. It did not consider the availability of carryover RINs from prior years. See id. at 77, 482-87.

         Applying that approach, EPA concluded that "the volumes for advanced biofuel and total renewable fuel specified in the statute cannot be achieved in 2014, 2015, or 2016." Id. at 77, 431. EPA therefore relied upon its (i) cellulosic waiver authority and (ii) general waiver authority to reduce the volume requirements for total renewable fuel and advanced biofuel.

         First, EPA used its cellulosic waiver authority to significantly reduce the statutory volume requirements for advanced biofuel and total renewable fuel. EPA noted that the cellulosic waiver provision grants the agency "broad discretion" to decide "when and under what circumstances to reduce the advanced and total renewable fuel" volume requirements when it reduces the cellulosic biofuel volume requirement. Id. at 77, 434. EPA determined that, due to various constraints on the ability of the market to produce and consume non-cellulosic advanced biofuels, non-cellulosic advanced biofuels could not entirely make up for the shortfall created by EPA's reduction of the cellulosic biofuel volume requirement. See id. at 77, 426, 77, 434. EPA therefore relied on its cellulosic waiver authority to lower the advanced biofuel and total renewable fuel volume requirements for the years 2014, 2015, and 2016. Id. at 77, 434, 77, 439.

         Second, EPA made additional reductions to the total renewable fuel volume requirements using the "inadequate domestic supply" prong of its general waiver authority. See id. at 77, 434-39. EPA noted that it had "never before" interpreted the "inadequate domestic supply" provision for purposes of deciding whether to reduce a total renewable fuel volume requirement. Id. at 77, 435. Proceeding with its first-ever interpretation, EPA concluded that the phrase "inadequate domestic supply" is ambiguous because it "does not specify what the general term 'supply' refers to." Id.

         Exercising its authority to resolve that purported ambiguity, EPA concluded that the phrase "inadequate domestic supply" is best read to refer to "the adequacy of supply of renewable fuel" available to "the ultimate consumer[s]" of renewable fuel blended into transportation fuel. Id. at 77, 436. EPA also concluded that its authority to determine the adequacy of the renewable fuel "supply" allowed the agency to look not only to supply-side factors in the market for renewable fuel - such as constraints on the production or import of renewable fuel - but also at factors affecting demand for renewable fuel by consumers - such as vehicle engine warranties and the effectiveness of those businesses marketing renewable fuel products. See id. at 77, 435, 77, 452 tbl.II.E.1-1. Analyzing those factors, EPA concluded that the available supply of total renewable fuel still fell short of the statutory volume requirements, even after those requirements were reduced through use of the cellulosic waiver authority. Id. at 77, 439. EPA therefore relied on the "inadequate domestic supply" waiver provision to further reduce the 2014, 2015, and 2016 total renewable fuel volume requirements. Id.

         Below is a table summarizing the total renewable fuel volume requirements (in billions of gallons) issued by EPA in the Final Rule. For each year, the table lists the statutory volume requirements; the reduction to those statutory requirements attributable to EPA's use of the cellulosic waiver provision and the general waiver provision; the final volume requirements set by EPA; and the total reduction to the statutory volume requirements made by EPA through use of its waiver authorities.

         Table 1.1 - Total Renewable Fuel Volume Requirements (in billions of gallons)

Total Renewable Fuel Volume Requirements

Year

Statute

Cellulosic Waiver Reduction

General Waiver Reduction

EPA Rule

Total Reduction from Waivers

2014

18.15

1.08

.79

16.28

1.87

2015

20.5

2.62

.95

16.93

3.57

2016

22.25

3.64

.5

18.11

4.14

         Finally, although EPA in the Final Rule focused most of its discussion on the volume requirements and percentage standards, EPA did note that it had received comments regarding the current "point of obligation" - that is, EPA's decision to place the compliance burden on refiners and importers, but not blenders. EPA stated its view that those comments were "beyond the scope" of the rulemaking because EPA "did not propose any changes to the definition of an obligated party" nor "seek comment on this issue." Id. at 77, 431; EPA Response to Comments on Final Rule, at 883 (Nov. 2015), J.A. 1027. EPA therefore declined to address comments related to the point of obligation. See Final Rule, 80 Fed. Reg. at 77, 431.

          C

         Following EPA's issuance of the Final Rule in December 2015, a number of parties filed petitions for review in this Court. Two petitions - one filed by National Biodiesel Board and the other filed by a group of petitioners including Americans for Clean Energy - challenge EPA's Final Rule for setting the renewable fuel volume requirements at too low a level. From the other direction, a number of petitions - filed by a group of obligated parties and industry associations that we will call the "Obligated Party Petitioners" - challenge EPA's Final Rule for setting the renewable fuel volume requirements at too high a level and for refusing to address the proper point of obligation.

         We now consider those petitions and the issues they present. The opinion proceeds as follows.

         In Part II, we address Americans for Clean Energy's challenge to EPA's interpretation of the "inadequate domestic supply" waiver provision. We agree with Americans for Clean Energy that the term "inadequate domestic supply" refers to the supply of renewable fuel available to refiners, blenders, and importers to meet the statutory volume requirements. We hold that EPA exceeded its authority under the "inadequate domestic supply" provision when it interpreted the term "supply" to allow it to consider demand-side constraints in the market for renewable fuel. We therefore vacate EPA's decision to reduce the total renewable fuel volume requirements for 2016 through use of the "inadequate domestic supply" waiver authority and remand the rule to the agency for further consideration in light of our decision.

         We also consider Americans for Clean Energy's argument that EPA was required to consider "carryover RINs" for purposes of determining whether there is an "inadequate domestic supply" of renewable fuel. We reject that challenge, as we conclude that the statute does not require EPA to consider carryover RINs for purposes of the "inadequate domestic supply" provision.

         In Part III, we consider the issues arising from EPA's delay in promulgating the Final Rule. First, EPA used actual renewable fuel volumes to set the 2014 and 2015 volume requirements in order to minimize the hardship to obligated parties caused by the late issuance of the Final Rule. In doing so, EPA acted reasonably under the circumstances. We therefore reject National Biodiesel Board's and Americans for Clean Energy's arguments to the contrary. Second, EPA's late issuance of the biomass-based diesel volume requirements was permissible. Contrary to the arguments of the Obligated Party Petitioners, we conclude that EPA had statutory authority to issue the late biomass-based diesel volume requirements and exercised that authority reasonably.

         In Part IV, we consider and reject the Obligated Party Petitioners' arbitrary and capricious challenges to the 2016 cellulosic biofuel projections. We conclude that EPA's cellulosic biofuel projection methodology was permissible under our precedents and otherwise reasonable and reasonably explained.

         In Part V, we consider and reject National Biodiesel Board's contention that EPA violated its statutory authority when interpreting and applying the cellulosic waiver provision. Based on this Court's analysis in Monroe Energy, we conclude that the text of the cellulosic waiver provision affords EPA "broad discretion" to consider a variety of factors - including demand-side constraints in the market for advanced biofuel - when determining "whether and in what circumstances to reduce" volume requirements through use of the cellulosic waiver authority. 750 F.3d at 915. We also deny National Biodiesel Board's related arbitrary and capricious challenges to EPA's projection of the volume of advanced biofuel "reasonably attainable" in the market in the year 2016. Final Rule, 80 Fed. Reg. at 77, 427.

         In Part VI, we conclude that we need not resolve whether EPA's failure to address the proper point of obligation in the Final Rule necessitates a remand of the rule to the agency.

         II

         We first address whether EPA permissibly interpreted the "inadequate domestic supply" prong of its general waiver authority when lowering total renewable fuel volume requirements for the years 2014, 2015, and 2016. Americans for Clean Energy argues that EPA's interpretation of the phrase "inadequate domestic supply, " under which EPA considered demand-side factors affecting the amount of renewable fuel available to consumers, is inconsistent with the statute. We agree with Americans for Clean Energy.

         Americans for Clean Energy also contends that EPA is required to consider carryover RINs for purposes of determining whether there is an "inadequate domestic supply" of renewable fuel during a given year. On that point, we side with EPA and conclude that the agency permissibly declined to consider carryover RINs for purposes of determining the available supply of total renewable fuel for the years 2014, 2015, and 2016.

         A

         1

         The Renewable Fuel Program requires increasing volumes of renewable fuel to be introduced into the Nation's transportation fuel market. That market consists of a number of actors that play a part in delivering transportation fuel to consumers for use in their vehicles. There are refiners and importers, who manufacture and import conventional fossil-based gasoline and diesel fuels. In addition, there are biofuel producers, who manufacture the various categories of renewable fuel mandated by the Renewable Fuel Program. There are fuel blenders, who purchase fossil-based fuels and renewable fuels and mix the two together to create blended transportation fuels. There are retail fueling stations, who purchase blended transportation fuels and sell those fuels to consumers. And there are the consumers, who purchase transportation fuels for use in their vehicles. Although some market participants are vertically integrated - a refining company may also operate blending facilities or fueling stations, for example - many are not.

         In enacting the Renewable Fuel Program, Congress chose not to place any compliance burdens on the fueling stations or consumers of transportation fuel. Instead, the statute allows EPA to designate three categories of upstream market participants - "refineries, " "blenders, " and "importers" - as "obligated parties" responsible for ensuring that the renewable fuel volume requirements are met. 42 U.S.C. § 7545(o)(3)(B)(ii)(I). To date, EPA has applied the renewable fuel obligations only to refiners and importers of fuel - not to blenders. See 40 C.F.R. § 80.1406(a)(1). By requiring upstream market participants such as refiners and importers to introduce increasing volumes of renewable fuel into the transportation fuel supply, Congress intended the Renewable Fuel Program to be a "market forcing policy" that would create "'demand pressure' to increase consumption" of renewable fuel. Final Rule, 80 Fed. Reg. at 77, 423; Monroe Energy, LLC v. EPA, 750 F.3d 909, 917 (D.C. Cir. 2014) (quoting Regulation of Fuels and Fuel Additives: 2013 Renewable Fuel Standards, 78 Fed. Reg. 49, 794, 49, 821 (Aug. 15, 2013)).

         Refiners and importers demonstrate their compliance with the statute by accumulating the requisite number of renewable fuel credits, known as RINs. Each set of RINs corresponds to a batch of renewable fuel produced or imported for use in the United States. As relevant here, RINs generally remain attached to a volume of fuel until the fuel is: (i) purchased by an obligated party - that is, by a refiner or importer - or (ii) blended into a transportation fuel by a blender. 40 C.F.R. § 80.1429(b)(1)-(2). When either of those two things occurs, RINs become "separated" from the associated volume of renewable fuel. Id. § 80.1429(b). Those separated RINs, in turn, are accumulated by refiners and importers in order to demonstrate compliance with the Renewable Fuel Program's requirements. See id. § 80.1427(a)(1).

         Therefore, individual refiners and importers have options when it comes to demonstrating compliance with their statutory obligations. Some may choose to comply with the statute by purchasing or blending renewable fuel themselves. Other parties may comply with the statute by purchasing the separated RINs generated, among other ways, when blenders mix renewable and fossil-based fuels to create blended transportation fuels. No matter how individual obligated parties choose to comply with the statute, however, the key point for present purposes is this: Refiners and importers are able to meet the Renewable Fuel Program's industry-wide statutory volume requirements only if an adequate volume of renewable fuel is available to refiners, importers, and blenders.

         2

         Although the Renewable Fuel Program statute establishes the annual volume requirements for the different categories of renewable fuel, Congress also granted EPA "waiver" power to reduce the statutory volume requirements in certain circumstances. Here, we consider the statute's "inadequate domestic supply" waiver provision. That provision is located within a section establishing EPA's general waiver authority. The provision gives EPA discretion to "waive" the statutory requirements applicable to obligated parties "in whole or in part" by "reducing the national quantity of renewable fuel required under paragraph (2) . . . based on a determination by the Administrator, after public notice and opportunity for comment, that there is an inadequate domestic supply." 42 U.S.C. § 7545(o)(7)(A) (emphasis added).[1]

         Before the 2015 Final Rule, EPA had never relied upon the "inadequate domestic supply" waiver provision to reduce a statutory volume requirement. See Final Rule, 80 Fed. Reg. at 77, 435. In the 2015 Final Rule, EPA relied on that provision to reduce the total renewable fuel volume requirements for the years 2014, 2015, and 2016. See id. at 77, 439. In so doing, EPA issued its first-ever interpretation of the term "inadequate domestic supply" for the purposes of establishing a renewable fuel volume requirement. Id. at 77, 435.

         EPA began by noting its view that the statutory phrase "inadequate domestic supply" is ambiguous. Id. That is so, according to EPA, because the text "does not specify" what "product" or "person" the "general term 'supply' refers to." Id. Having concluded that the phrase "inadequate domestic supply" is ambiguous, EPA stated that it had interpretive authority to adopt a reading of the waiver provision that would best align with "the overall policy goals" of the Renewable Fuel Program. Id. at 77, 436. That "best" reading has two important elements that we consider here. Id. at 77, 435.

         First, EPA concluded that the best reading of the "inadequate domestic supply" provision is that it refers to the supply of renewable fuel available to consumers for use in their vehicles - not to the supply of renewable fuel available to refiners, blenders, and importers for use in meeting the statutory volume requirements. See id. at 77, 435-36. Under that interpretation, EPA considered all factors that would affect the amount of renewable fuel available for sale to consumers including, among other things, the capacity and incentives of transportation fuel distributors and retail gas stations to distribute and sell blended transportation fuel. See id. at 77, 452 tbl.II.E.1-1.

         Second, EPA concluded that the "inadequate domestic supply" waiver provision grants it authority not only to consider supply-side constraints affecting the availability of renewable fuel - such as renewable fuel production or import capacity - but also to consider demand-side factors affecting consumers' desire or ability to consume renewable fuels. Id. at 77, 435-36. Those demand-side factors included, among other things, the "existence of and expansion of" vehicles and engines "capable of using" renewable fuel; the number of "retail outlets that offer renewable fuels blends"; "the attractiveness" of renewable fuel blends "to consumers"; and the "marketing ...


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