USCA Case #20-1107 Document #1837483 Filed: 04/06/2020 Page 1 of 77 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ) NATIONAL BIODIESEL BOARD, ) ) Petitioner, ) ) v. ) Case No. ___________20-1107 ) UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY, ) ) Respondent. ) ) PETITION FOR REVIEW Pursuant to Rule 15 of the Federal Rules of Appellate Procedure and Section 307(b) of the Clean Air Act, 42 U.S.C. §7607(b), the National Biodiesel Board hereby petitions the Court for review of a final action of the U.S. Environmental Protection Agency (“EPA”) entitled “Renewable Fuel Standard Program: Standards for 2020 and Biomass-Based Diesel Volume for 2021 and Other Changes,” published at 85 Fed. Reg. 7016 (Feb. 6, 2020). A copy of the Federal Register notice is attached to this Petition. Respectfully submitted, /s/ Bryan M. Killian Bryan M. Killian Douglas A. Hastings USCA Case #20-1107 Document #1837483 Filed: 04/06/2020 Page 2 of 77 Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., NW Washington, DC 20004 (202) 373-6191 (telephone) (202) 739-3001 (facsimile) Counsel for the National Biodiesel Board Dated: April 6, 2020 2 USCA Case #20-1107 Document #1837483 Filed: 04/06/2020 Page 3 of 77 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ) NATIONAL BIODIESEL BOARD, ) ) Petitioner, ) ) v. ) Case No. ___________ ) UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY, ) ) Respondent. ) ) RULE 26.1 CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1 and D.C. Circuit Rule 26.1, Petitioner National Biodiesel Board makes the following disclosures: The National Biodiesel Board has no parent companies, and no publicly-held company has a 10% or greater ownership interest. It has not issued shares or debt securities to the public. The National Biodiesel Board is a trade association as defined in D.C. Circuit Rule 26.1(b). It is the national trade association for the biodiesel industry, and its mission is to advance the interests of its members by creating sustainable biodiesel industry growth. USCA Case #20-1107 Document #1837483 Filed: 04/06/2020 Page 4 of 77 Respectfully submitted, /s/ Bryan M. Killian Bryan M. Killian Douglas A. Hastings Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., NW Washington, DC 20004 (202) 373-6191 (telephone) (202) 739-3001 (facsimile) Counsel for the National Biodiesel Board Dated: April 6, 2020 2 USCA Case #20-1107 Document #1837483 Filed: 04/06/2020 Page 5 of 77 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ) NATIONAL BIODIESEL BOARD, ) ) Petitioner, ) ) v. ) Case No. ___________ ) UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY, ) ) Respondent. ) ) CERTIFICATE OF SERVICE Pursuant to Rule 25(d) of the Federal Rules of Appellate Procedure, I hereby certify that the foregoing Petition for Review and Rule 26.1 Statement have been served by United States first-class mail or equivalent this 6th day of April, 2020, upon each of the following: The Honorable Andrew Wheeler Office of General Counsel Administrator U.S. Environmental Protection Agency U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW William Jefferson Clinton Building Mail Code: 2311 1200 Pennsylvania Avenue, NW Washington, D.C. 20460 Mail Code: 1101A Washington, DC 20460 The Honorable William Barr Ben Carlisle Attorney General Senior Attorney USCA Case #20-1107 Document #1837483 Filed: 04/06/2020 Page 6 of 77 Jeffrey Bossert Clark United States Department of Justice Assistant Attorney General Environment and Natural Resources U.S. Department of Justice Division 950 Pennsylvania Avenue, NW Environmental Defense Section Washington, DC 20530 Four Constitution Sq., Room 4.1130 Washington DC, 20002 /s/ Bryan M. Killian Bryan M. Killian 2 USCA Case #20-1107 Document #1837483 Filed: 04/06/2020 Page 7 of 77 ATTACHMENT 3 7016 USCAFederal Case #20-1107Register / Vol. Document85, No. 25 / Thursday,#1837483 February Filed:6, 2020 04/06/2020 / 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 carefully examine the Renewable Diesel To Achieve Advanced 1. Carryover RIN Bank Size Biofuel Volume applicability criteria in 40 CFR part 80. 2. EPA’s Decision Regarding the Treatment If you have any questions regarding the of Carryover RINs b. Historical Supply of Biodiesel and applicability of this action to a III. Cellulosic Biofuel Volume for 2020 Renewable Diesel particular entity, consult the person A. Statutory Requirements c. Consideration of Production Capacity and Distribution Infrastructure listed in the FOR FURTHER INFORMATION B. Cellulosic Biofuel Industry Assessment d. Consideration of the Availability of CONTACT section. 1. Review of EPA’s Projection of Cellulosic Biofuel in Previous Years Advanced Feedstocks Outline of This Preamble 2. Potential Domestic Producers e.