The issue of small refinery exemptions (SREs) under the Renewable Fuel Standard (RFS) continues to percolate, with the Department of Justice (DOJ) weighing in on whether the Supreme Court should review the 10th Circuit Court of Appeals decision that found three SREs granted were invalid as they were not continuations of prior SREs.
DOJ opted not to appeal the 10th Circuit ruling, but the two companies that were affected by the decision are pursuing an appeal. “The decision below does not meet this Court's ordinary criteria for granting certiorari,” DOJ said. “The government agrees with petitioners that the question presented has important implications for the renewable fuel standard program. This case, however, would be an unsuitable vehicle for addressing the question because a decision favorable to petitioners would not change the judgment.”
DOJ also argued that other “pending proceedings provide an additional reason to deny the petition in this case.” The court case could be one factor in why EPA has yet to decide on the 17 gap year SREs still pending and on 41 SREs for the 2019 and 202 compliance years combined.