The 10th Circuit Court of Appeals has rejected the request by Wynnewood Refining Company and HollyFrontier Cheyenne Refining to rehear the case in which a three-judge panel ruled that three small refinery exemptions (SREs) granted for the 2016 compliance year were invalid.
The court did not indicate why it rejected the request. The court said in its initial ruling that the law indicated the SREs were only available as extensions to companies that had received them in 2010.
The matter could now be appealed to the Supreme Court but it is not known if the refineries will opt to pursue that. The Trump administration waffled on whether to appeal (request an en banc hearing by the full court) and did not opt to take that step. That lowered expectations that the refiners would be successful in their challenge of the decision.
This shifts attention to EPA as they stated March 27, “EPA intends to develop an appropriate implementation and enforcement response to the 10th Circuit's decision in RFA v. EPA once appeals have been resolved and the court's mandate has been issued.” Expectations are that if EPA applies the decision nationwide, it would mean few refiners would qualify for SREs – reports indicate that only two or three would qualify.
Currently, there are 25 SREs pending for the 2019 compliance year.
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