AMERICAN PETROLEUM INSTITUTE, Petition for Review (PDF)
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USCA Case #20-1103 Document #1837068 Filed: 04/03/2020 Page 1 of 77 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT _________________________________________ ) AMERICAN PETROLEUM INSTITUTE, ) ) Petitioner, ) ) v. ) ) ANDREW WHEELER, in his official capacity ) as Administrator, U.S. Environmental Protection ) No. _____________20-1103 Agency, ) ) and ) ) UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY, ) ) Respondents. ) ) PETITION FOR REVIEW Pursuant to 42 U.S.C. § 7607(b) and Rule 15(a) of the Federal Rules of Appellate Procedure, American Petroleum Institute (“API”) hereby petitions this Court for review of the final rule of the United States Environmental Protection Agency entitled “Renewable Fuel Standard Program: Standards for 2020 and Biomass-Based Diesel Volume for 2021 and Other Changes,” 85 Fed. Reg. 7016 (Feb. 6, 2020), to be codified at 40 C.F.R. Parts 79 and 80 (“Final Rule”). A copy of the Final Rule is attached to this Petition. USCA Case #20-1103 Document #1837068 Filed: 04/03/2020 Page 2 of 77 API seeks review on the grounds that aspects of the Final Rule are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; are in excess of statutory jurisdiction, authority, or limitations; and were adopted without observance of procedure required by law. See 42 U.S.C. § 7607(d)(9). API requests that this Court hold unlawful, vacate, enjoin, and set aside these aspects and all non-severable aspects of the Final Rule, and that the Court award costs and fees as authorized by 42 U.S.C. § 7607(f). 2 USCA Case #20-1103 Document #1837068 Filed: 04/03/2020 Page 3 of 77 Respectfully submitted, s/ Robert A. Long, Jr. Robert A. Long, Jr. Kevin King Thomas Brugato Carlton Forbes COVINGTON & BURLING LLP One CityCenter 850 Tenth Street, NW Washington, DC 20001-4956 (202) 662-6000 [email protected] Paul G. Afonso John Wagner Maryam Hatcher AMERICAN PETROLEUM INSTITUTE 200 Massachusetts Avenue NW Suite 1100 Washington, DC 20001 April 3, 2020 Attorneys for Petitioner American Petroleum Institute 3 USCA Case #20-1103 Document #1837068 Filed: 04/03/2020 Page 4 of 77 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT _________________________________________ ) AMERICAN PETROLEUM INSTITUTE, ) ) Petitioner, ) ) v. ) ) ANDREW WHEELER, in his official capacity ) as Administrator, U.S. Environmental Protection ) No. _____________20-1103 Agency, ) ) and ) ) UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY, ) ) Respondents. ) ) CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and Circuit Rule 26.1, Petitioner American Petroleum Institute (“API”) states as follows: API is a nationwide, not-for-profit association representing over 600 member companies engaged in all aspects of the oil and gas industry, including science and research, exploration and production of oil and natural gas, transportation, refining of crude oil, and marketing of oil and gas products. API has no parent companies, and no publicly held company has a ten percent or USCA Case #20-1103 Document #1837068 Filed: 04/03/2020 Page 5 of 77 greater ownership interest in API. API is a “trade association” within the meaning of Circuit Rule 26.1. API is a continuing association operating for the purpose of promoting the general commercial, regulatory, legislative, and other interests of its members. Respectfully submitted, s/ Robert A. Long, Jr. Robert A. Long, Jr. Kevin King Thomas Brugato Carlton Forbes COVINGTON & BURLING LLP One CityCenter 850 Tenth Street, NW Washington, DC 20001-4956 (202) 662-6000 [email protected] Paul G. Afonso John Wagner Maryam Hatcher AMERICAN PETROLEUM INSTITUTE 200 Massachusetts Avenue NW Suite 1100 Washington, DC 20001 Attorneys for Petitioner April 3, 2020 American Petroleum Institute 2 USCA Case #20-1103 Document #1837068 Filed: 04/03/2020 Page 6 of 77 CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of April 2020, I caused copies of the foregoing Petition for Review and Corporate Disclosure Statement to be served upon the parties listed below by first class mail, postage prepaid, to: Administrator Andrew Wheeler U.S. Environmental Protection Agency 1200 Pennsylvania Ave. NW Washington, DC 20460 Matthew Z. Leopold General Counsel Office of the General Counsel U.S. Environmental Protection Agency 1200 Pennsylvania Ave. NW Washington, DC 20460 William P. Barr Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Ave, NW Washington, DC 20530 s/ Robert A. Long, Jr. Robert A. Long, Jr. USCA Case #20-1103 Document #1837068 Filed: 04/03/2020 Page 7 of 77 EXHIBIT A 7016 USCAFederal Case #20-1103Register / Vol. Document85, No. 25 / Thursday,#1837068 February Filed:6, 2020 04/03/2020 / Rules and Regulations Page 8 of 77 ENVIRONMENTAL PROTECTION statutory waiver authority that is the https://www.regulations.gov AGENCY available when the projected cellulosic website. Although listed in the index, biofuel production volume is less than some information is not publicly 40 CFR Parts 79 and 80 the applicable volume specified in the available, e.g., CBI or other information [EPA–HQ–OAR–2019–0136; FRL–10003–79– statute, EPA is establishing volume whose disclosure is restricted by statute. OAR] requirements for cellulosic biofuel, Certain other material is not available advanced biofuel, and total renewable on the internet and will be publicly RIN 2060–AU42 fuel that are below the statutory volume available only in hard copy form. Renewable Fuel Standard Program: targets. We are also establishing the Publicly available docket materials are Standards for 2020 and Biomass- applicable volume of biomass-based available electronically through https:// Based Diesel Volume for 2021 and diesel for 2021. In addition, we are www.regulations.gov. Other Changes finalizing changes to the percentage FOR FURTHER INFORMATION CONTACT: Julia standard calculations to account for MacAllister, Office of Transportation AGENCY: Environmental Protection volumes of gasoline and diesel we and Air Quality, Assessment and Agency (EPA). project will be exempted from the Standards Division, Environmental ACTION: Final rule. renewable volume obligations. Finally, Protection Agency, 2000 Traverwood this action finalizes several regulatory Drive, Ann Arbor, MI 48105; telephone SUMMARY: Under section 211 of the changes to the Renewable Fuel Standard Clean Air Act, the Environmental number: 734–214–4131; email address: (RFS) program including new pathways, [email protected]. Protection Agency (EPA) is required to flexibilities for regulated parties, and set renewable fuel percentage standards clarifications of existing regulations. SUPPLEMENTARY INFORMATION: Entities every year. This action establishes the potentially affected by this final rule are annual percentage standards for DATES: This final rule is effective on those involved with the production, cellulosic biofuel, biomass-based diesel, April 6, 2020. distribution, and sale of transportation advanced biofuel, and total renewable ADDRESSES: The EPA has established a fuels, including gasoline and diesel fuel fuel that apply to gasoline and diesel docket for this action under Docket ID or renewable fuels such as ethanol, transportation fuel produced or No. EPA–HQ–OAR–2019–0136. All biodiesel, renewable diesel, and biogas. imported in the year 2020. Relying on documents in the docket are listed on Potentially affected categories include: Category NAICS 1 codes SIC 2 codes Examples of potentially affected entities Industry ............................................ 324110 2911 Petroleum refineries. Industry ............................................ 325193 2869 Ethyl alcohol manufacturing. Industry ............................................ 325199 2869 Other basic organic chemical manufacturing. Industry ............................................ 424690 5169 Chemical and allied products merchant wholesalers. Industry ............................................ 424710 5171 Petroleum bulk stations and terminals. Industry ............................................ 424720 5172 Petroleum and petroleum products merchant wholesalers. Industry ............................................ 221210 4925 Manufactured gas production and distribution. Industry ............................................ 454319 5989 Other fuel dealers. 1 North American Industry Classification System (NAICS). 2 Standard Industrial Classification (SIC). This table is not intended to be G. Amendments to the RFS and Fuels 3. Total Cellulosic Biofuel in 2020 exhaustive, but rather provides a guide Programs Regulations IV. Advanced Biofuel and Total Renewable for readers regarding entities likely to be H. Response To Remand of 2016 Standards Fuel Volumes for 2020 Rulemaking A. Volumetric Limitation on Use of the affected by this final action. This table II. Authority and Need for Waiver of lists the types of entities that EPA is Cellulosic Waiver Authority Statutory Applicable Volumes B. Attainable Volumes of Advanced now aware could potentially be affected A. Statutory Authorities for Reducing Biofuel by this action. Other types of entities Volume Targets 1. Imported Sugarcane Ethanol not listed in the table could also be 1. Cellulosic Waiver Authority 2. Other Advanced Biofuel affected. To determine whether your 2. General Waiver Authority 3. Biodiesel and Renewable Diesel entity would be affected by this action, B. Severability a. Volume of Advanced Biodiesel and C. Treatment of Carryover RINs you should