Sinclair Wyoming Refining Company LLC and Sinclair Casper Refining Company LLC v. Environmental Protection Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 16, 2024 Decided July 26, 2024
Reissued August 14, 2024
No. 22-1073
S INCLAIR WYOMING R EFINING C OMPANY LLC AND S INCLAIR
C ASPER R EFINING C OMPANY LLC,
P ETITIONERS
v.
ENVIRONMENTAL P ROTECTION A GENCY,
R ESPONDENT
AMERICAN C OALITION FOR ETHANOL, ET AL.,
INTERVENORS
Consolidated with 22-1075, 22-1100, 22-1102, 22-1109,
22-1114, 22-1115, 22-1122, 22-1128, 22-1129, 22-1130,
22-1132, 22-1133, 22-1135, 22-1165, 22-1181, 22-1183,
22-1185, 22-1186, 22-1187, 22-1188, 22-1189, 22-1190,
22-1191, 22-1192, 22-1194, 22-1195, 22-1197, 22-1199,
22-1219, 22-1238, 22-1240, 22-1246
On Petitions for Review of Final Actions
of the Environmental Protection Agency

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Michael R. Huston and Mark W. DeLaquil argued the
causes for petitioners. With them on the joint briefs were Eric
D. McArthur, Peter C. Whitfield, Daniel J. Feith, Peter A.
Bruland, Jonathan G. Hardin, Alexandra M. Bromer, Samuel
P. Hershey, Thomas E. Lauria, Andrew K. Gershenfeld, Jeffrey
R. Holmstead, Brittany M. Pemberton, and Ian S. Shelton. Eric
B. Wolff and Karl J. Worsham entered appearances.
Bryan J. Harrison and Jeffrey Hughes, Attorneys, U.S.
Department of Justice, argued the causes for respondent. With
them on the brief was Todd Kim, Assistant Attorney General.
Matthew W. Morrison argued the cause for intervenors in
support of respondent. With him on the brief were Cynthia
Cook Robertson, Shelby L. Dyl, and David M. Lehn.

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No. 22-1074
S INCLAIR WYOMING R EFINING C OMPANY LLC,
P ETITIONER
v.
ENVIRONMENTAL P ROTECTION A GENCY,
R ESPONDENT
AMERICAN P ETROLEUM INSTITUTE AND KERN OIL & R EFINING
C O.,
INTERVENORS
Consolidated with 22-1125, 22-1126, 22-1127, 22-1179,
24-1008, 24-1010
On Petitions for Review of Final Actions
of the Environmental Protection Agency
David Lehn argued the cause and filed the briefs for
petitioner Growth Energy.
Jeffrey R. Holmstead and Samuel P. Hershey argued the
causes for petitioners Sinclair Wyoming Refining Company,
LLC and Wynnewood Refining Company, LLC. With them
on the briefs were Brittany M. Pemberton, Thomas E. Lauria,

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and Andrew K. Gershenfeld. Lucius B. Lau and Taylor R.
Pullins entered appearances.
Benjamin Grillot, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief was
Todd Kim, Assistant Attorney General.
Daniel J. Feith argued the cause for intervenors for
respondent. With him on the brief were Eric D. McArthur,
Peter C. Whitfield, Jonathan G. Hardin, Michael R. Huston,
LeAnn Johnson Koch, Alexandra Magill Bromer, Karl J.
Worsham, Ian S. Shelton, Robert A. Long, Jr., Kevin King,
Thomas Brugato, Daniel G. Randolph, Robert J. Meyers,
Elizabeth B. Dawson, Richard S. Moskowitz, and Tyler Kubik.
Ryan C. Morris, John P. Wagner, and Eric B. Wolff entered
appearances.
Before: P ILLARD , R AO and P AN , Circuit Judges.
Opinion for the Court filed P ER C URIAM.
P ER C URIAM: The Clean Air Act’s (“CAA”) Renewable
Fuel Standard (“RFS”) program requires oil refineries to
introduce renewable fuels, such as ethanol, into the nation’s
energy supply. Refineries meet their obligations under the RFS
program by blending renewable fuels into fossil fuels that are
sold at gas stations or by purchasing certain credits that indicate
their compliance. Small refineries that would be “subject to a
disproportionate economic hardship if required to comply” can
petition the Environmental Protection Agency (“EPA”) for
exemptions from the RFS program’s requirements.
In 2022, EPA denied all pending RFS-exemption petitions
filed by small refineries (the “Denial Actions”). EPA

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determined that the only costs relevant to showing economic
hardship in support of an exemption petition were those caused
by compliance with the RFS program, and that refineries fully
and efficiently pass such costs on to their customers. EPA thus
concluded that small refineries do not face any economic
hardship imposed by compliance with the RFS program.
Because the agency’s rationale for denying the pending
exemption petitions was a departure from its prior practice, and
the denials came years after the relevant compliance years had
ended, EPA eased the burden on certain small refineries by
providing them with an alternative means of meeting their RFS
obligations (the “Alternative Compliance Actions”).
Specifically, EPA excused the small refineries from buying and
submitting compliance credits for certain years.
Several small refineries now challenge the Denial Actions
as contrary to law and arbitrary and capricious. Growth
Energy, a trade association whose members are ethanol
producers, challenges the Alternative Compliance Actions as
unauthorized by law. And two refineries—Sinclair Wyoming
Refining Company and Wynnewood Refining Company—
argue that the April Alternative Compliance Action stopped
short of providing them with adequate relief.
We conclude that EPA’s rationale for denying all pending
exemption requests was contrary to law and arbitrary and
capricious. We therefore vacate the Denial Actions except with
respect to two refineries—Company A and Company B—
which EPA correctly determined were ineligible for
exemptions on other grounds unaffected by vacatur of the
Denial Actions.1 We dismiss Growth Energy’s petition
1 We refer to those two refineries as “Company A” and
“Company B” because their identities are shielded by a protective

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because Growth Energy has failed to demonstrate that it has
standing to challenge the Alternative Compliance Actions. We
deny on the merits Sinclair’s petition challenging the April
Alternative Compliance Action, and we dismiss Wynnewood’s
petition because it does not challenge a final agency action.
I.
A.
In 2005 and 2007, Congress amended the Clean Air Act to
establish the RFS program, which aims to “increase the
production of clean renewable fuels.” Energy Independence
and Security Act of 2007, Pub. L. No. 110-140, 121 Stat. 1492
(2007). “To move the United States towards greater reliance
on clean energy, the Clean Air Act’s [RFS program] calls for
annual increases in the amount of renewable fuel introduced
into the U.S. fuel supply.” Growth Energy v. EPA, 5 F.4th 1,
7 (D.C. Cir. 2021) (per curiam).
To achieve the goals of the RFS program, Congress
requires refineries and other obligated parties to meet
“‘applicable volume[s]’—mandatory and annually increasing
quantities of renewable fuels that must be ‘introduced into
commerce in the United States’ each year—and tasks [EPA]
with ‘ensur[ing]’ that those annual targets are met.” Am. Fuel
& Petrochemical Mfrs. v. EPA, 937 F.3d 559, 568 (D.C. Cir.
2019) (per curiam) (alterations in original) (quoting 42 U.S.C.
§ 7545(o)(2)(A)(i)). Congress dictated the applicable volumes
through 2022 for three types of renewable fuel, and for a fourth
type—biomass-based diesel—it dictated applicable volumes
order. See Sinclair Wyo. Refin. Co. LLC v. EPA, No. 22-1073, Doc.
1987069 (D.C. Cir. Feb. 22, 2023).

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through 2012. See 42 U.S.C. § 7545(o)(2)(B)(i)(IV). During
those initial years, Congress required EPA to convert the
applicable volumes into industry standards. Id.
§ 7545(o)(3)(B). For ensuing compliance years, Congress did
not dictate applicable volumes but instead required EPA to do
so. Id. § 7545(o)(2)(B)(ii). Generally, EPA’s RFS industry
standards take the form of a percentage calculated by dividing
the applicable volume of each renewable fuel by the agency’s
estimate of the total volume of fuel the nation will consume—
e.g., if the applicable volume for a given year is 15 billion
gallons of renewable fuel, and EPA estimates that the nation
will consume 100 billion gallons of fuel that year, the standard
will be 15 percent. See Wynnewood Refin. Co., LLC v. EPA,
77 F.4th 767, 773 (D.C. Cir. 2023).
EPA measures industry compliance with the annual
renewable-fuel requirements by using credits called RINs,
short for “Renewable Identification Numbers.” Id. at 774
(noting that RINs “serve as the currency of the RFS Program”);
see 40 C.F.R. § 80.1427(a). Refineries must obtain RINs and
then submit or “retire” them to EPA to show that they have
done their part to meet the RFS standard in each compliance
year. See Wynnewood Refin. Co., 77 F.4th at 774. RINs are
assigned to each “batch” of renewable fuel that is produced or
imported for use in the United States. 40 C.F.R. § 80.1426(a),
(e). When the renewable fuel is blended with conventional
transportation fuel (e.g., gasoline or diesel), the RINs are
“separated” from their assigned batch and “may be traded in
the market” to other obligated parties in need of RINs “or used
to demonstrate compliance” with the RFS program.
Wynnewood Refin. Co., 77 F.4th at 774; see 40 C.F.R.
§§ 80.1426(e), 80.1429(b).

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Excess RINs that are neither used nor traded by the
refinery that generated them can be “banked,” i.e., saved “for
use in the next compliance year.” Ams. for Clean Energy v.
EPA, 864 F.3d 691, 699 (D.C. Cir. 2017) (cleaned up). Banked
RINs “are known in the industry as ‘carryover’ RINs.” Id.
Carryover RINs may be used only in the subsequent
compliance year, and otherwise “will expire.” Monroe Energy,
LLC v. EPA, 750 F.3d 909, 913 (D.C. Cir. 2014) (citing 40
C.F.R. § 80.1427(a)(6)). Small refineries that are unable to
blend renewable fuel must purchase RINs to comply with the
RFS program, 42 U.S.C. § 7545(o)(5)(D), or they must apply
for an exemption from the requirements of the program based
on disproportionate economic hardship, id. § 7545(o)(9).
B.
When Congress created the RFS program, it recognized
that the program “could work special burdens on small
refineries.” HollyFrontier Cheyenne Refin. LLC v. Renewable
Fuels Ass’n, 594 U.S. 382, 386 (2021). Congress therefore
provided three categories of exemptions for small refineries,
i.e., refineries that produce, on average, fewer than 75,000
barrels of fuel a day. See 42 U.S.C. § 7545(o)(1)(K).
First, Congress provided a blanket exemption for all small
refineries until calendar year 2011. See id. § 7545(o)(9)(A)(i)
(“The requirements of paragraph (2) shall not apply to small
refineries until calendar year 2011.”).
Second, recognizing that hardship could continue past
2011, Congress directed the Department of Energy (“DOE”) to
conduct a study “to determine whether compliance with the
[RFS program] would impose a disproportionate economic
hardship on small refineries.” Id. § 7545(o)(9)(A)(ii)(I). If

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DOE determined that a small refinery “would be subject to a
disproportionate economic hardship if required to comply
with” the RFS program, EPA was required to extend the
exemption for any such refinery for at least two years. Id.
§ 7545(o)(9)(A)(ii)(II).
Third, and most relevant here, Congress provided that “[a]
small refinery may at any time petition” EPA “for an
extension” of its exemption from RFS obligations “for the
reason of disproportionate economic hardship.” See id.
§ 7545(o)(9)(B)(i). EPA is tasked with “evaluating [such]
petition[s],” and in doing so must “consult[] with the Secretary
of Energy” and “consider the findings” of DOE’s hardship
report, as well as “other economic factors.” Id.
§ 7545(o)(9)(B)(ii). Significantly, relief under this provision
must take the form of an “extension” of Congress’s initial
blanket exemption; the statute does not provide a mechanism
for EPA to grant hardship exemptions to small refineries that
did not receive the initial exemption. See id.; see also
HollyFrontier, 594 U.S. at 397.2
2 In relevant part, the text of 42 U.S.C. § 7545(o)(9)(B) reads as
follows:
(B) Petitions based on disproportionate economic
hardship
(i) Extension of exemption
A small refinery may at any time petition the
Administrator for an extension of the exemption
under subparagraph (A) for the reason of
disproportionate economic hardship.
(ii) Evaluation of petitions

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DOE’s first small-refinery study in 2009 found that, in a
liquid and competitive RIN market, compliance with the RFS
program would not impose disproportionate economic
hardship. But in 2011, DOE issued a second study, which
found that small refineries “have particular obstacles that could
make compliance more costly than those of large integrated
companies.” DOE, Small Refinery Exemption Study at 3
(2011) (J.A. 15).3 In particular, the 2011 DOE Study
concluded that small refineries may lack sufficient access to
capital to purchase RINs. It also determined that small
refineries may experience economic hardship for reasons
beyond the cost of RINs, noting that small refineries often (1)
sell to local or niche markets that are less accepting of
renewable fuel; (2) sell diesel fuel, which is harder to blend
with renewables; and (3) may be subject to state regulations
that require refineries to sell unblended fuel. Moreover, the
2011 DOE Study considered economic hardship that was
unrelated to the RFS program, such as “shutdown[s] due to []
accident[s] and subsequent loss[es] of revenue.” Id. at 36 (J.A.
48).
The 2011 DOE Study also included a scoring matrix that
could be used to assess which small refineries would face
disproportionate economic hardship. For over a decade after
the issuance of the 2011 DOE Study—until the Denial Actions
In evaluating a petition under clause (i), the
Administrator, in consultation with the Secretary
of Energy, shall consider the findings of the study
under subparagraph (A)(ii) and other economic
factors.
3 All “J.A.” cites are to the joint appendix in the 22-1073 case
unless otherwise noted.

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at issue here—EPA relied on DOE’s findings and applied
DOE’s scoring matrix to determine whether to grant hardship
exemptions. During that period, EPA nearly always granted
hardship relief when DOE’s scoring matrix recommended it.4
Meanwhile, in 2015, EPA released an assessment of RIN
market dynamics (the “Burkholder Study”). In that study, EPA
concluded that the price of gasoline and diesel includes the cost
of acquiring RINs, which means that refineries pass through
the price of acquiring RINs to their consumers when they sell
fuel (the “RIN cost passthrough theory”). Nevertheless, EPA
did not immediately incorporate the findings of the Burkholder
Study into its assessment of hardship petitions. Instead, EPA
continued to follow DOE’s matrix, which takes into
consideration factors such as access to capital and unique
market demand for non-renewable fuel.
C.
In Renewable Fuels Association v. EPA (“RFA”), 948 F.3d
1206 (10th Cir. 2020), the Tenth Circuit reviewed EPA’s
interpretation of the RFS provisions of the Clean Air Act and
the agency’s decision to grant certain hardship exemptions for
the 2016 and 2017 compliance years. See id. at 1214. The
4 The scoring matrix relies on indices that tracked “two broad
components” of disproportionate economic hardship: a “high cost of
compliance relative to the industry average,” and “significant
impairment of [] refinery operations” caused by the cost of
compliance. J.A. 15. The two indices incorporate information
relevant to disproportionate economic hardship that go beyond the
costs of compliance with the RFS program. Id.

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Tenth Circuit concluded that EPA erred in three relevant
respects.
First, the Tenth Circuit held that any refineries that had not
received continuous exemptions from compliance since the
beginning of the RFS program were ineligible for an
“extension” under the statute. Id. at 1244-49.
Second, the court determined that EPA’s practice of
considering “hardships beyond those caused by RFS
compliance” in granting exemptions was contrary to law. Id.
at 1253-54. It noted that the statutory language allowed
refineries to petition for exemptions based on “disproportionate
economic hardship if required to comply with RFS
obligations,” making clear that “renewable fuels compliance
must be the cause of any disproportionate hardship.” Id. at
1253 (cleaned up) (emphasis added). Accordingly, the court
concluded, EPA erred by granting “extensions of exemptions
based at least in part on hardships not caused by RFS
compliance.” Id. at 1254.
Third, the court held that EPA had not adequately
accounted for its own theory that all costs of complying with
the RFS program could be passed on to consumers. The Tenth
Circuit noted that the upshot of the RIN cost passthrough
theory was that although refineries were “directly paying for
the RINs they buy on the market,” they were “passing that cost
along in the form of higher wholesale gasoline and diesel
prices.” Id. at 1256 (cleaned up). EPA’s analysis of economic
hardship in support of the 2016 and 2017 exemptions was
flawed, according to the court, because the agency “did not
analyze the possibility of RIN cost recoupment.” Id.

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The Supreme Court partially reversed the Tenth Circuit’s
holding. See HollyFrontier, 594 U.S. 382. The Court held that
a small refinery may receive an “extension” of an exemption
even if it had not been continuously exempted from complying
with the requirements of the RFS program. See id. at 399-400.
The Court did not address the Tenth Circuit’s alternative
holdings regarding the scope of the hardships that may be
considered in granting an RFS exemption, or the effect of the
RIN cost passthrough theory.
Nevertheless, on remand from the Supreme Court, the
Tenth Circuit vacated its entire decision. See RFA v. EPA,
No. 18-9533, 2021 WL 8269239 (10th Cir. July 27, 2021).
D.
In the aftermath of the Supreme Court’s HollyFrontier
decision and the vacatur of the Tenth Circuit’s decision in RFA
v. EPA, EPA informed the small refineries with pending
hardship-exemption petitions that it was considering denying
all the pending petitions, which spanned compliance years
2016 to 2021. Then, in April 2022, EPA denied 36 petitions
for compliance year 2018, including 31 petitions it had initially
granted. EPA, April 2022 Denial of Petitions for RFS Small
Refinery Exemptions (2022) (J.A. 2943-3016) (“April
Denial”). In June 2022, EPA issued a materially identical
decision denying all remaining pending hardship petitions.
EPA, June 2022 Denial of Petitions for RFS Small Refinery
Exemptions (2022) (J.A. 3120-94) (“June Denial”). The
Denial Actions broke from EPA’s prior approach in several
ways, influenced by the reasoning of the Tenth Circuit’s
opinion in RFA v. EPA.

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First, “primarily informed by the RFA opinion,” EPA
reinterpreted the relevant statutory language to require
refineries to demonstrate that they experienced
disproportionate economic hardship caused solely by
compliance with the RFS program. See April Denial at 17 (J.A.
2961).
Second, and relatedly, EPA applied the RIN cost
passthrough theory to conclude that RFS compliance would not
impose any economic hardship on any refinery. Relying on the
Burkholder Study and other market data, EPA found that RIN
markets are efficient and liquid, and that the price of fuel on
any given day accounts for that day’s RIN prices. Thus,
refineries can purchase RINs ratably—that is,
contemporaneously with the sale of their fuel—and pass
through the RIN costs to consumers in the price of the fuel.
Based on those assumptions, EPA concluded that “no
small refinery experiences [disproportionate economic
hardship] as a result of compliance with the RFS program.” Id.
at 18 (J.A. 2962). Accordingly, it denied all the pending small-
refinery hardship-exemption petitions.
EPA also relied on alternative grounds in denying the
hardship petitions filed by two refineries—Company A and
Company B. EPA determined that those two refineries were
ineligible for relief because they had not received the initial
blanket exemption and therefore could not be granted an
“extension” of relief under the terms of the statute. See id. at
22 (J.A. 2966) (“[T]he language of the statute indicates that,
without having received the [initial blanket exemption,] there
is nothing for a small refinery to petition EPA to extend
temporally” such that “if a small refinery did not receive the

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original statutory blanket exemption, it is ineligible to have
EPA extend the duration of that exemption.”).
E.
EPA recognized that the Denial Actions would pose
special difficulties for the small refineries whose hardship
petitions for certain years initially were granted by the agency
before the Tenth Circuit’s decision in RFA, but later were
denied in light of the Tenth Circuit’s intervening adverse
decision. Thus, EPA provided alternative ways for small
refineries in that predicament to comply with their RFS
obligations.
In conjunction with the April Denials, EPA provided
alternative RFS compliance options to the 31 small refineries
that previously had received exemptions for the 2018
compliance year. EPA, April 2022 Alternative RFS
Compliance Demonstration Approach for Certain Small
Refineries (2022) (J.A. (22-1074) 1-24) (“April Compliance
Action”). EPA determined that those 31 small refineries no
longer held RINs necessary to comply with their 2018 RFS
obligations, and that requiring them to seek new RINs would
lead to a drawdown of the carryover RIN bank that would
threaten the integrity of the RFS program. Thus, under the
April Compliance Action, the 31 small refineries that originally
received an exemption from their 2018 compliance obligations
were required to submit annual compliance reports but were
not required to retire any additional RINs to meet their
reinstated 2018 RFS obligations.
EPA acknowledged that the June Denial, which denied all
remaining hardship petitions filed by small refineries, affected
three refineries whose 2016 and 2017 exemption petitions

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previously had been granted. Thus, EPA offered those small
refineries the same alternative means of compliance that had
been provided in the April Compliance Action. EPA, June
2022 Alternative RFS Compliance Demonstration Approach
for Certain Small Refineries (2022) (J.A. (22-1074) 358-85)
(“June Compliance Action”). We refer to the June and April
Compliance Actions together as the Alternative Compliance
Actions.
F.
Numerous refineries subject to the Denial Actions filed
petitions for review in this court. Those petitions were
consolidated and are now before us. Fifteen of those
petitioners also filed petitions for review in other circuits where
their refineries are located—the Third, Fifth, Seventh, Ninth,
Tenth, and Eleventh Circuits. The other circuits, except for the
Fifth Circuit, concluded that all the cases challenging the
Denial Actions belonged in the D.C. Circuit: They thus either
transferred those petitions for review to this court or dismissed
them. The Fifth Circuit, however, held otherwise and reached
a decision on the merits. See Calumet Shreveport Refin., LLC
v. EPA, 86 F.4th 1121 (5th Cir. 2023). In Calumet, the Fifth
Circuit held, in relevant part, that (1) EPA’s interpretation of
the exemption provision to require economic hardship caused
solely by RFS-program costs was “foreclosed by the statute’s
text”; and (2) the RIN cost passthrough theory was “contrary
to the evidence” before the agency because it was
“implausible” that “all refineries can completely pass on their
RIN costs.” Id. at 1138, 1140.
Related petitions were filed to challenge the Alternative
Compliance Actions. First, Growth Energy, a trade association
whose members are ethanol producers, asserts that the

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Alternative Compliance Actions are unlawful because EPA
lacked statutory authority to absolve refineries from purchasing
RINs to meet their obligations under the RFS program.
Second, two refineries—Sinclair and Wynnewood—challenge
the April Compliance Action as not extending far enough.
II.
The petitioners argue the Denial Actions are contrary to
law because EPA’s interpretation unlawfully narrows the RFS
program’s small refinery hardship exemption. We agree.
A.
The CAA authorized an initial exemption from RFS
obligations for all small refineries. 42 U.S.C.
§ 7545(o)(9)(A)(i). A two-year extension of that blanket
exemption was available for small refineries “subject[ed] to a
disproportionate economic hardship if required to comply
with” the RFS program. Id. § 7545(o)(9)(A)(ii)(II); see also
id. § 7545(o)(9)(A)(ii)(I) (instructing the Secretary of Energy
to determine when RFS compliance “would impose a
disproportionate economic hardship on small refineries”).
After that extension, small refineries could “at any time”
petition EPA for further extensions of the hardship exemption
“for the reason of disproportionate economic hardship.” Id.
§ 7545(o)(9)(B)(i). When deciding those petitions, EPA must
consider the 2011 DOE Study and “other economic factors.”
Id. § 7545(o)(9)(B)(ii).
In the Denial Actions, EPA interpreted the CAA to require
a refinery “have disproportionate RFS compliance costs and
actual economic hardship due to those disproportionate RFS
compliance costs” to qualify for a hardship exemption. April

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Denial at 18 (J.A. 2962). In other words, an exemption could
be granted only if a small refinery’s RFS compliance costs were
disproportionate. EPA further reasoned that because small
refineries comply with the RFS program by generating or
purchasing and then retiring RINs, the only compliance cost is
the cost of generating or purchasing RINs. Thus, EPA
concluded, for a petitioner to qualify for an exemption
extension, it must experience a hardship from disproportionate
RIN costs alone.
EPA also limited “the ‘other economic factors’ EPA may
consider when evaluating [exemption] petitions” to factors
“related to determining whether the small refinery’s
compliance with its RFS obligations is what caused its alleged”
disproportionate economic hardship. Id. (J.A. 2962). As we
describe at length in the background section and in the next
part, under EPA’s passthrough theory, refineries pass the cost
of purchasing RINs through to end purchasers. EPA relied on
this theory to conclude that refineries cannot experience
disproportionate RFS compliance costs, so no economic
hardship can result. Id. at 29 (J.A. 2973).
Based on its interpretation of the CAA and in conjunction
with its economic theory, EPA denied all of the pending
hardship petitions for failing to show disproportionate
economic hardship from RFS compliance. Id. at 1 (J.A. 2945).
B.
EPA’s definition of disproportionate economic hardship is
inconsistent with the plain meaning of the hardship exemption

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and contradicts other provisions in the CAA.5 The Denial
Actions exclusively focused on compliance costs instead of
economic hardship, neglected the CAA’s directive to consider
“other economic factors,” and introduced an overly strict
causation requirement.
First, while Congress conditioned the exemption on a
showing of “economic hardship,” EPA essentially considered
compliance costs as the only qualifying economic hardship. Id.
at 28 (J.A. 2972). The natural meaning of “hardship,”
however, encompasses more than compliance costs. A
hardship is a “[p]rivation; suffering or adversity.” B LACK’S
LAW DICTIONARY (11th ed. 2019); see also Sinclair Wyo.
Refin. Co. v. EPA, 887 F.3d 986, 996-97 (10th Cir. 2017)
(defining hardship as “something that ‘makes one’s life hard or
difficult’” (citation omitted)). A cost is a far narrower concept,
“[t]he amount paid or charged for something; price or
expenditure.” B LACK’S LAW DICTIONARY (11th ed. 2019).
Costs can certainly impose a hardship, but the economic
hardship imposed by a regulatory action can extend beyond
costs.
Many considerations, from geographic to refinery-specific
factors, could result in the same compliance costs affecting
refineries differently. The Supreme Court in HollyFrontier
explained that the CAA’s authorization to petition “at any
time” recognized “the possibility that small refineries might
apply for exemptions in different years in light of market
fluctuations and changing hardship conditions,” factors that
extend beyond compliance costs. HollyFrontier, 594 U.S. at
5 Our analysis and conclusion that the Denial Actions are contrary
to law is consistent with the Fifth Circuit’s decision in Calumet
Shreveport Refining, 86 F.4th at 1137-40.

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393. We previously affirmed EPA’s broad discretion to
consider a range of factors when deciding hardship petitions.
Hermes Consol., LLC v. EPA, 787 F.3d 568, 574-75 (D.C. Cir.
2015).
But regulatory discretion and flexibility do not permit EPA
to restrict the meaning of “economic hardship” in a manner
inconsistent with the CAA. While EPA may consider a variety
of economic factors when deciding what a hardship is, it cannot
reduce the broad statutory term “economic hardship” to only
one factor. See Sinclair Wyo. Refin. Co., 887 F.3d at 996
(holding EPA could not consider only the long-term viability
of the refinery when determining whether it faced an economic
hardship). EPA’s interpretation of the CAA unduly narrowed
“economic hardship” to include only compliance costs.6
Second, a blinkered focus on compliance costs runs afoul
of the statutory directive that EPA consider “other economic
factors,” in addition to economic hardship, when deciding
whether to extend a hardship petition. 42 U.S.C.
§ 7545(o)(9)(B)(ii). In the Denial Actions, EPA limited “other
economic factors” to “determining whether the small refinery’s
compliance with its RFS obligations is what caused its alleged”
disproportionate economic hardship. April Denial at 18 (J.A.
2962). This misses the mark.
The consideration of “other economic factors” cannot be
reduced to the economic hardship of RFS compliance because
EPA must “consider the findings of the [2011 DOE Study] and
6 We conclude EPA’s interpretation was contrary to law.
However, we have no occasion to otherwise determine the meaning
of “disproportionate economic hardship,” which Congress did not
define in the CAA. See 42 U.S.C. § 7545(o)(1).

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other economic factors.” 42 U.S.C. § 7545(o)(9)(B)(ii)
(emphasis added). The 2011 DOE Study is the component that
calls for “determin[ing] whether compliance with the
requirements of [the RFS program] would impose a
disproportionate economic hardship on small refineries.” Id.
§ 7545(o)(9)(A)(ii)(I). In the CAA, Congress instructs EPA to
consider “other economic factors” in addition to considering
economic hardship from RFS compliance.
EPA’s definition is overly narrow because it fails to
account for EPA’s obligation to consider “other economic
factors” beyond those in the DOE Study. “Congress was aware
the RFS Program might disproportionately impact small
refineries because they lack the inherent scale advantages of
large refineries.” Sinclair Wyo. Refin. Co., 887 F.3d at 989.
EPA’s Denial Actions specifically excluded numerous factors
and did not explain what “other economic factors” it will
consider. April Denial at 60 (J.A. 3004). EPA’s analysis
suggests that there are no permissible factors outside of RFS
compliance costs—an interpretation that reads “other
economic factors” out of the statute.
Relying on our decision in Hermes, EPA argued the
CAA’s silence on the definition of “disproportionate economic
hardship” and its failure to identify particular “other economic
factors” to be considered gives EPA “substantial discretion” to
implement the RFS exemptions. April Denial at 17 (J.A. 2961)
(quoting Hermes, 787 F.3d at 575). But that discretion obtains
only “[a]s long as EPA consults with DOE and considers the
2011 Study and ‘other economic factors.’” Hermes, 787 F.3d
at 575. EPA enjoys no discretion to refuse to consider “other
economic factors.”

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Third, EPA’s approach overreads the requirement that a
refinery’s hardship be caused by RFS compliance. EPA
reasoned that hardships unrelated to RFS compliance could not
be considered when granting an exemption and that reliance on
other factors was beyond EPA’s statutory authority. April
Denial at 26-28 (J.A. 2970-72). EPA maintains that its
interpretation is informed by the Tenth Circuit’s decision in
RFA v. EPA, which held that “hardships caused by overall
economic conditions are different from hardships caused by
compliance with statutory renewable fuel obligations.” 948
F.3d at 1253. In consideration of that ruling, EPA says it
“determined that disproportionate economic hardship must be
caused only by RFS compliance to allow EPA to grant an
exemption petition.” Resp. Br. 43 (emphasis added). But that
holding is neither law in this circuit nor in the Tenth Circuit,
where it has since been vacated. See RFA v. EPA, 2021 WL
8269239; see also HollyFrontier, 594 U.S. at 399-400
(reversing RFA v. EPA, 948 F.3d 1206).
EPA’s interpretation of the small refinery hardship
exemption imposes a limitation that goes beyond the plain
meaning of the statute. While the necessary economic hardship
must be caused by RFS compliance, the statute nowhere
suggests that this must be the sole cause of the hardship. To
describe the relationship between RFS compliance and
economic hardship, the CAA uses the phrases “subject to . . . if
required to comply with” and “compliance . . . would
impose.”7 Courts have found similar terms—including “based
7 This causal language describes the requirements for granting an
initial hardship exemption extension. 42 U.S.C.
§ 7545(o)(9)(A)(ii)(I), (II). Although the language is not repeated in
the provision for subsequent extensions, the same requirement that
RFS compliance “impose” the hardship necessarily applies to any

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on,” “by reason of,” and “results from”—to require simple but-
for causation. See Burrage v. United States, 571 U.S. 204, 213-
14 (2014) (collecting cases). A “but-for cause” is “[t]he cause
without which the event could not have occurred.” B LACK’S
LAW DICTIONARY (11th ed. 2019). For RFS compliance to
cause a hardship, the hardship would not have occurred without
compliance. But that does not foreclose other factors
contributing to the hardship.
Moreover, Congress required sole causation elsewhere in
the CAA but did not impose that requirement for the small
refinery hardship exemption. The CAA uses the word “solely”
when describing the required causation standard in other parts
of the statute.8 “[W]here Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or
exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983)
(citation omitted). Although these provisions of the CAA were
enacted at different times than the small refinery hardship
exemption, the principle is the same. We “may not narrow a
subsequent extension precisely because it is an extension of the initial
exemption. Id. § 7545(o)(9)(B)(i); see also HollyFrontier, 594 U.S.
at 393-94.
8 See, e.g., 42 U.S.C. § 7545(t)(8) (discussing amenability to “an
enforcement action or penalties under subsection (d) solely arising
from the blending of compliant reformulated gasolines”); id.
§ 7407(e)(3) (“No compliance date extension . . . shall cease to be
effective by reason of the regional limitation . . . if the violation of
such limitation is due solely to a redesignation of a region under this
subsection.”); id. § 7412(b)(3)(A) (“The Administrator may not deny
a petition solely on the basis of inadequate resources or time for
review.”).

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provision’s reach by inserting words Congress chose to omit.”
Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1725 (2020).
EPA argues the statute need not include “magic words,
such as ‘solely,’” to impose a strict causation standard. But
“‘sole’ and but-for cause are very different.” Ponce v.
Billington, 679 F.3d 840, 845 (D.C. Cir. 2012). In the Title VII
context, for example, the Supreme Court and our court have
explained “the statutory phrase ‘because of,’” a but-for
causation requirement, “does not mean ‘solely because of.’”
Porter v. Natsios, 414 F.3d 13, 18 (D.C. Cir. 2005) (citation
omitted). Nothing in EPA’s argument justifies reading
“imposed” to mean “solely imposed.”
Although EPA has a measure of flexibility when
implementing the RFS program and its exemptions, EPA’s
interpretation in the Denial Actions goes beyond its statutory
discretion and conflicts with the plain meaning of the CAA.9
C.
EPA also erred by concluding that nonratable RIN
purchases could not be considered a “disproportionate
economic hardship” because they are not caused by RFS
compliance.
In the Denial Actions, EPA explained that part of the
requirement to consider “other economic factors” includes
9 EPA primarily argues that its interpretation is the best reading
of the statute. In the alternative, however, EPA maintains its
construction is reasonable under Chevron. We need not consider this
alternative argument in light of the Supreme Court’s recent decision
in Loper Bright Enterprises v. Raimondo, which overrules Chevron.
See 144 S. Ct. 2244 (2024).

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considering economic theories that affect hardships imposed
by RFS compliance. One of those theories is EPA’s theory of
RIN cost passthrough. April Denial at 29 (J.A. 2973).
According to EPA, the market price of unblended gasoline and
diesel increases to reflect the price of RINs, allowing refineries
to pass the RIN cost through to fuel purchasers and to recover
the entire cost of acquiring RINs by selling at the market price.
Id. at 37 (J.A. 2981). Because refineries could pass on their
compliance costs, EPA treats the decision to purchase RINs
nonratably, along with any attendant costs, as a “business
choice.” It follows that the cost of purchasing RINs nonratably
“cannot be a basis for hardship relief” because that cost “does
not constitute [disproportionate economic hardship] caused by
the cost of compliance with the RFS program.” Id. at 55 (J.A.
2999).
EPA’s refusal to consider the costs of nonratable RIN
purchases ignores the compliance flexibility the CAA
provides. The CAA conditions the hardship exemption, and
subsequent extensions, only on RFS compliance being a cause
of the hardship. See 42 U.S.C. § 7545(o)(9)(A)(ii). The CAA
is silent on the required timing of RIN purchases, except to
require refineries to meet their RFS volume targets annually.
See id. § 7545(o)(2)(A)(i). Whenever RINs are purchased,
their costs are “impose[d]” by RFS compliance because
refineries purchase RINs only to comply with the RFS
program.
Insofar as the CAA addresses the timing of RIN purchases,
it expressly recognizes the availability of nonratable RIN
purchasing. The RIN deficit carryover provision permits
refineries that are “unable to generate or purchase sufficient
credits to meet the [RFS] requirements . . . to carry forward a
renewable fuel deficit” under certain conditions. Id.

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§ 7545(o)(5)(D). The refineries may then satisfy those RFS
requirements through RIN purchases over the next year. The
RIN deficit carryover provision is no mere afterthought.
Carryover RINs and RIN deficits are of “critical importance,”
providing essential “flexibility and liquidity” in the renewable
fuel market. Ams. for Clean Energy, 864 F.3d at 714-15. And
these carryover RIN deficits are necessarily satisfied by
purchasing RINs nonratably. EPA’s interpretation effectively
penalizes small refineries for purchasing RINs nonratably,
despite Congress’s provision of a RIN deficit carryover
mechanism that specifically contemplates nonratable RIN
purchases.
EPA’s policy justification for excluding nonratable RIN
purchases as a ground for economic hardship is unmoored from
the CAA. To begin with, the agency acknowledged that
nonratable purchases are lawful. April Denial at 55 (J.A.
2999). Nonetheless, EPA insisted that purchasing RINs
nonratably is “contrary to the purpose of the program” because
the RFS program exists to “‘ensure that gasoline sold . . . in the
United States . . . contains the applicable volume of renewable
fuel.’” Id. (J.A. 2999) (quoting 42 U.S.C. § 7545(o)(2)(A)(i)).
But the RFS program requires refineries to meet annual
requirements, not to purchase RINs ratably. Refineries must
retire RINs annually, regardless of when they purchase them.
EPA also argues its new interpretation satisfies Congress’s
intention to make the hardship exemption “temporary.” But
the term “temporary” applies only to the initial two-year
extension of the exemption. 42 U.S.C. § 7545(o)(9)(A) (titled
“Temporary exemption”). The continuing extension of the
hardship exemption proceeds from subparagraph (B), which
nowhere purports to be “temporary.” To the contrary, it
provides a mechanism for the ongoing renewal of exemptions.

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27
See id. § 7545(o)(9)(B)(i) (permitting hardship petitions “at
any time”). Moreover, the Supreme Court has already rejected
policy arguments for “taper[ing] down” the number of
refineries receiving hardship exemptions as inconsistent with
the statutory text. HollyFrontier, 594 U.S. at 399 (cleaned up).
The CAA and Supreme Court precedent make clear that EPA
cannot sunset the small refinery exemption by regulatory fiat.
* * *
A statutory exemption cannot swallow the rule, but neither
can we read a statute’s purposes so broadly as to render the
exemptions superfluous. The RFS program reflects a carefully
crafted legislative bargain to promote renewable fuels, but also
to provide an exemption mechanism for small refineries. EPA
enjoys some flexibility with respect to implementing the
program, but it cannot rewrite the balance established by
Congress. EPA’s interpretation cannot be squared with the
CAA. Accordingly, we hold the Denial Actions are contrary
to law.
III.
Petitioners next argue that EPA’s Denial Actions are
arbitrary and capricious. We again agree.
We must “hold unlawful and set aside agency action,
findings, and conclusions” that are “arbitrary, capricious, [or]
an abuse of discretion.” 5 U.S.C. § 706(2). Under this
standard, an agency must engage in reasoned decision making.
See Michigan v. EPA, 576 U.S. 743, 750 (2015). That means
that the agency must “examine the relevant data and articulate
a satisfactory explanation for its action.” FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 513 (2009) (cleaned

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28
up). Agency action is arbitrary and capricious if it “has relied
on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could
not be ascribed to a difference in view or the product of agency
expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Moreover,
if an agency changes positions, it must “display awareness that
it is changing position.” Fox Television, 556 U.S. at 515
(emphasis in original). Thus, an agency “may not, for example,
depart from a prior policy sub silentio.” Id.
In the Denial Actions, EPA concluded that small refineries
do not face disproportionate economic hardship because they
bear no costs of complying with the RFS program. That is so,
in EPA’s view, because (1) RIN markets are efficient and
liquid, and the price of fuel on any given day accounts for that
day’s RIN prices; (2) small refineries may purchase RINs
“ratably,” or contemporaneously with their fuel sales; and (3)
small refineries therefore can pass through the cost of RINs to
their customers. April Denial at 55 (J.A. 2999); see id. at B-63
(J.A. 3106) (“[T]he very concept of ratable RIN purchases
means that the acquisition of the RIN is approximately
concurrent with the sale of the fuel.”).
EPA also determined that small refineries that cannot
blend fuel and must purchase RINs do not face
disproportionate compliance costs compared to refineries that
generate RINs because RIN-generating refineries must
discount their fuel prices by the full value of the RINs that they
sell. Under EPA’s theory, there is no advantage to generating
RINs by blending fuel as opposed to buying RINs from
others—either way, fuel prices will adjust to account for the

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29
value of the RINs that are contemporaneously bought or sold.
Cf. Alon Refin. Krotz Springs, Inc. v. EPA, 936 F.3d 628, 650
(D.C. Cir. 2019) (noting that EPA’s theory assumes that
refineries that “offer finished fuel without attached RINs . . .
must discount their blended fuel by roughly the value of the
RINs that they detached” in order to ensure that their fuel is
offered “at a competitive price” (emphasis omitted)).
Petitioners dispute EPA’s central premise. They argue that
they cannot always purchase RINs ratably, and that fact fatally
undermines EPA’s analysis. See April Denial at B-63 (J.A.
3106) (arguing that small refineries cannot “acquire RINs
ratably due to a lack of capital, an inability to afford the RINs,
or specific limitations in their ability to buy RINs in the proper
lot sizes without facing a much steeper cost to acquire the
RINs”); id. at B-39 (J.A. 3082) (arguing that ratable RIN
purchases are impossible on weekends). According to
petitioners, EPA’s misunderstanding of the dynamics and
features of the RIN market render its denial of their hardship
petitions arbitrary and capricious. We agree with petitioners
for three reasons.
First, EPA’s position on the ready availability of
contemporaneous RIN purchases is the precise opposite of its
prior stance on this point, and the agency offers no explanation
for its change in view. See Fox Television, 556 U.S. at 515
(noting that an agency “may not . . . depart from a prior policy
sub silentio”). By way of background, on October 11, 2018,
the President directed EPA to “address RIN price manipulation
claims and increase transparency in the RIN market.”
Modifications to Fuel Regulations to Provide Flexibility for
E15; Modifications to RFS RIN Market Regulations, 84 Fed
Reg. 10,584, 10,608 (proposed Mar. 21, 2019). In response,
EPA considered a proposal to require refineries to retire RINs

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30
in real time (i.e., ratably) rather than yearly. See id. at 10,616
(noting that EPA “considered a provision that would require
RIN retirement for every batch of gasoline or diesel
immediately or shortly after it is produced or imported”). But
EPA declined even to seek comment on that proposal. It stated
that it did not “believe a practical implementation framework
for [real-time RIN retirement] exist[ed].” Id. EPA reasoned
that “[i]t would be virtually impossible for the market to
instantaneously meet such tight demand for RINs” by refineries
and other regulated parties because “[t]he generation of RINs
and the production and import of transportation fuel are not
time aligned over the course of the year.” Id. In other words,
because RIN generation “is not consistent throughout the
year,” there were “many months” where “the demand for RINs
exceeded the generation of new RINs.” Id. In EPA’s view,
this “lack of alignment in time between RIN generation and
gasoline/diesel fuel demand render[ed] ‘real time’ RIN
retirement infeasible.” Id. Although EPA’s 2019 action
addressed the timing of RIN retirements, which is not at issue
here, EPA’s 2019 reasoning regarding RIN purchases is
germane to our review.
EPA’s Denial Actions represent a sharp departure from its
prior conclusion. Despite previously finding that real-time
RIN retirement was “infeasible” and “virtually impossible”
based in part on the impracticability of ratably acquiring the
needed RINs, id., EPA here concluded that small refineries
may purchase RINs ratably and should do so to avoid economic
hardship, see April Denial at 54 (J.A. 2998) (“Obligated parties
that choose to purchase the RINs they need for compliance on
a ratable basis . . . will recover the cost of the RINs they
purchase in the sales price of the petroleum fuel they sell.”).
EPA made no attempt to explain its about-face on this critical
assumption, and that failure of explanation alone renders

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31
EPA’s Denial Actions arbitrary and capricious. See Fox
Television, 556 U.S. at 515.10
Second, the record evidence did not adequately support
EPA’s assumption that ratable RIN purchases are consistently
available to small refineries. See State Farm, 463 U.S. at 43
(noting that an agency acts arbitrarily and capriciously when it
“offer[s] an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could
not be ascribed to a difference in view”). Specifically, EPA
failed to sufficiently account for weekend fuel sales. RIN price
quotes are “not available for weekends and major holidays,”
but fuel is still sold on those days—indeed, 28 percent of all
fuel transactions occur on Saturday and Sunday. April Denial
at B-39 (J.A. 3082). A refinery selling fuel on weekends thus
cannot purchase RINs ratably—it must purchase RINs
preemptively based on Friday’s prices, or belatedly based on
Monday’s prices. This reality undercuts EPA’s passthrough
theory—if the market price of RINs decreases over the
weekend, weekend fuel prices presumably will take account of
the lower price and also will drop. Accordingly, a refinery that
purchased RINs on Friday will suffer an economic loss because
10 EPA asserts that arguments regarding its change in position
were never raised before the agency. EPA is incorrect: Several
commenters argued before the agency that EPA’s new position was
inconsistent with its prior rejection of a real-time RIN retirement
requirement. See Par Pacific, Comments on “Proposed RFS Small
Refinery Exemption Decision” at 13 & n.63 (Feb. 7, 2022) (J.A. 390
& n.63); Delek US Holdings, Comments on “Proposed RFS Small
Refinery Exemption Decision” at 2 & n.3 (Dec. 14, 2021) (J.A. 747
& n.3); Wynnewood Refining, Comments on “Proposed RFS Small
Refinery Exemption Decision” at 27 & n.147 (Feb. 7, 2022) (J.A.
2692 & n.147).

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32
it will be unable to pass through the full price of its RINs.
Accord Calumet Shreveport Refin., 86 F.4th at 1141 (noting
that refineries are at least sometimes “unable to purchase RINs
ratably”).
EPA acknowledged that RIN price quotes are unavailable
on weekends but countered that such unavailability was not
“fundamentally problematic for refineries wishing to acquire
RINs ratably with their fuel production and sales.” April
Denial at B-39 (J.A. 3082). EPA reasoned that the refineries
“can buy a volume of RINs at Friday’s RIN price but at a
volume that reflects Friday, Saturday, and Sunday’s sales
volumes.” Id. (J.A. 3082). EPA believed that this solution was
sufficient because “Friday’s RIN price information is the
information that the market has when it finds the appropriate
fuel pricing on Saturday and Sunday.” Id. (J.A. 3082). In other
words, EPA assumed that weekend fuel prices would reflect
Friday’s RIN prices. But EPA provided no studies or data to
support that conclusion. Indeed, the chief study on which EPA
relied in support of its RIN cost passthrough theory did not
examine any data for weekends. See Christopher R. Knittel et
al., The Pass-Through of RIN Prices to Wholesale and Retail
Fuels under the Renewable Fuel Standard: Analysis of Post-
March 2015 Data at 15 (Nov. 23, 2016) (J.A. 14644) (noting
that “[t]he data are for U.S. business days”). Thus, EPA’s
determination that refineries can efficiently pass through RIN
costs on weekends amounts to “sheer speculation.” Sorenson
Commc’ns, Inc. v. FCC, 755 F.3d 702, 708 (D.C. Cir. 2014).
In addition, EPA ignores the fact that small refineries may
not have the necessary working capital to pre-purchase RINs to
account not only for Friday’s fuel sales but also Saturday’s and
Sunday’s. One of the core tenets of the RIN cost passthrough
theory is that small refineries will never be economically

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33
burdened by the RFS program because they can use the
proceeds from their fuel sales to purchase RINs. That principle
does not work if the small refineries are expected to purchase
RINs in advance of their corresponding fuel sales.
Third, EPA failed to support its assumption that RIN
prices are immediately passed through to the refineries’
customers. See State Farm, 463 U.S. at 43 (noting that an
agency acts arbitrarily and capriciously when it “offer[s] an
explanation for its decision that runs counter to the evidence
before the agency”). EPA relied on the Knittel study, which
concluded that RIN prices generally are passed through from
refineries to their customers. See Alon Refin. Krotz Springs,
Inc., 936 F.3d at 649 (explaining the Knittel study’s findings
that “RIN cost[s] generally [are] included in the sale prices of
obligated fuels” (cleaned up)). That study did not find that the
cost passthrough is immediate: It stated that “73% of a change
in RIN price was passed through in the form of higher
petroleum prices in the same day [and] 98% within two
business days.” Id. (citing the Knittel study).
The evidence of a lag in price adjustment undercuts EPA’s
assumption that a refinery can assure RIN cost passthrough by
purchasing RINs ratably. If a refinery is unable to pass through
the entire cost of its RINs when it makes its fuel sales, the
refinery may suffer economic losses that could cause hardship.
EPA’s failure to support the central premise of its economic
theory renders the Denial Actions arbitrary and capricious. See
Am. Fuel & Petrochemical Mfrs., 937 F.3d at 589.11
11 EPA suggests that “ratably” may mean only purchasing “on a
systematic, regular basis” rather than “contemporaneously.” See
April Denial at 54 (J.A. 2998). This definition does not change our

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34
For each of the foregoing reasons, EPA’s Denial Actions
are arbitrary and capricious.12
IV.
EPA denied two refineries’ hardship petitions for an
independent reason: EPA concluded that, in addition to failing
to demonstrate disproportionate economic hardship, neither
refinery met threshold eligibility requirements to receive the
small-refinery hardship exemption. See April Denial at 21-23
(J.A. 2965-67). The companies—Company A and Company
B—challenge EPA’s ineligibility determination as contrary to
law and arbitrary and capricious. Company A also contends
that, even if the ineligibility criteria are lawful, EPA’s
application of them to its refinery was impermissibly
retroactive.
Some context is helpful to understand these challenges.
Between 2007 and 2014, EPA promulgated various regulations
conclusion. EPA has not offered any coherent definition of what
time frame constitutes “regular” purchasing, leaving us to “guess as
to what” the agency intended to say, and that renders the Denial
Actions arbitrary and capricious. See Checkosky v. SEC, 23 F.3d
452, 491 (D.C. Cir. 1994). Further, EPA has not explained how
regular, non-contemporaneous RIN purchases would ameliorate the
problems with passing through RIN costs discussed above.
12 Petitioners have also argued that the Denial Actions were
impermissibly retroactive because they reasonably relied on EPA’s
prior approach to adjudicating hardship petitions. Because we
conclude that EPA’s approach to adjudicating hardship petitions in
the Denial Actions was contrary to law and arbitrary and capricious,
we need not, and do not, address whether it was also impermissibly
retroactive.

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35
implementing the initial blanket exemption from the RFS
program and the later individualized extensions of that
exemption. In 2007 and 2010, EPA promulgated regulations
under the initial blanket exemption. See Regulation of Fuels
and Fuel Additives: Renewable Fuel Standard Program, 72
Fed. Reg. 23,900 (May 1, 2007); Regulation of Fuels and Fuel
Additives: Changes to Renewable Fuel Standard Program, 75
Fed. Reg. 14,670 (Mar. 26, 2010). Under those regulations, a
refinery would qualify for the blanket exemption if its average
crude oil throughput was below 75,000 barrels in either 2004
or 2006. See 40 C.F.R. §§ 80.1101(g), 80.1141(b)(2)(i) (2007);
40 C.F.R. §§ 80.1401, 80.1441(b)(1)(i) (2010). (EPA did not
use 2005 data because “some refineries’ production may have
been affected by Hurricanes Katrina and Rita.” See 72 Fed.
Reg. at 23,925.) A refinery that failed to qualify based on its
2004 and 2006 production would not be eligible for the initial
blanket exemption, even if its production fell below the
threshold amount in later years. EPA also required that, to
obtain the initial blanket exemption, a small refinery submit a
“verification letter” containing information enabling EPA to
confirm that the refinery qualified for the exemption. See 40
C.F.R. § 80.1141(b)(2) (2007) (now codified at
§ 80.1441(b)(1)). If EPA found “false or inaccurate
information” in the verification letter, it would “void” the
exemption. Id. § 80.1141(c).
The regulations implementing the statutory provision for
individual refineries to apply for extensions authorized a
refiner to petition “at any time . . . for an extension of its small
refinery exemption.” Id. § 80.1141(e)(1)(i) (2007) (now
codified at § 80.1441(e)(2)). EPA decided in 2014 to measure
refinery output based on the year for which the exemption is
sought and the immediately preceding year. See Regulation of
Fuels and Fuel Additives: RFS Pathways II, and Technical

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36
Amendments to the RFS Standards and E15 Misfueling
Mitigation Requirements, 79 Fed. Reg. 42,128, 42,152 (July
18, 2014) (codified at 40 C.F.R. § 80.1441(e)(2)(iii)). The
output of a small refinery seeking an exemption for the year
2020, for example, must be below the small-refinery threshold
in both 2020 and 2019.
Through 2016, EPA understood that, under the statute and
its regulations, “only small refineries that previously had
received the initial exemption . . . qualif[ied] for an extension
of that exemption.” Petition for Review at 4-5, Dakota Prairie
Refin., LLC v. EPA, No. 16-2692 (8th Cir. June 13, 2016)
(attaching a copy of EPA’s denial of a refinery hardship
petition on the ground that the refinery had not received the
initial blanket exemption); see also RFA, 948 F.3d at 1247.
Around 2017, however, the agency experimented with a
different approach. It started to grant hardship petitions,
including Company A’s, even when the refinery “did not
receive the initial, statutory small refinery exemption.” EPA,
Grant of Request for Extension of Small Refinery Temporary
Exemption under the Renewable Fuel Standard Program for
[Company A’s refinery] at 1. In doing so, EPA recognized that
it “[p]reviously . . . regarded as eligible for hardship relief only
those refineries that received the initial statutory exemption.”
Id. at 1 n.1. But it did not explain how a refinery that did not
receive the initial exemption could receive an “extension” of
that exemption. Instead, EPA defended its new approach on
policy grounds, observing that it would allow a refinery “to
seek hardship relief without regard to the refinery’s operations
from over a decade ago.” Id. Under that approach, EPA
initially granted Company A’s and Company B’s 2018
hardship petitions. See EPA, Decision on 2018 Small Refinery
Exemption Petitions (Aug. 9, 2019) (J.A. 3518-19) (“August
2019 Decision”).

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Those exemptions were quickly challenged in court.
Representatives of the renewable fuels industry challenged
some of the 2017 hardship exemptions in the Tenth Circuit in
2018. See Petition for Review, Renewable Fuels Ass’n v. EPA,
No. 18-9533 (10th Cir. May 29, 2018). And they challenged
the 2018 exemptions, including Company A’s and Company
B’s, in this court in 2019. See Petition for Review, Renewable
Fuels Ass’n v. EPA, No. 19-1220 (D.C. Cir. Oct. 22, 2019).
The Tenth Circuit acted first and faulted EPA for failing to heed
the statute’s “extension” terminology. RFA, 948 F.3d at 1243-
49. It held that a small refinery could receive an extension of
the exemption only if it had applied for and received an
exemption for every preceding year of the RFS program. See
id. at 1245. Otherwise, that court reasoned, there would be no
exemption to “extend.” Id.
The Supreme Court granted certiorari and charted a middle
path in HollyFrontier, 594 U.S. 382. The Court rejected as
unduly rigid the Tenth Circuit’s reading of the statute to require
unbroken continuity, holding that “small refineries whose
exemptions have lapsed in one year may still seek an
‘extension’ in a following year.” Id. at 390. The Court
embraced EPA’s pre-2017 position that hardship relief was
available “only to small refineries in existence in 2008 and not
to new ones” as sufficient to give meaning to the term
“extension,” since only refineries that received the initial
blanket exemption could petition for an “extension” of that
exemption. Id. at 397; see also id. at 398 (explaining that there
is nothing “odd about the fact that Congress chose only to
protect existing small refineries rather than new entrants” since
Congress often “chooses to protect existing market participants
from shifts in the law while applying new restrictions fully to
future entrants”).

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In light of the Supreme Court’s decision to review the
Tenth Circuit’s continuity holding, our Circuit held the
challenges to the 2018 exemptions in abeyance. See
Renewable Fuels Ass’n v. EPA, No. 19-1220 (D.C. Cir. Feb.
17, 2021), Doc. 1885774. After the Supreme Court issued its
opinion in HollyFrontier, we granted EPA’s request for a
voluntary remand of the exemptions. See Renewable Fuels
Ass’n v. EPA, No. 19-1220 (D.C. Cir. Dec. 8, 2021), Doc.
1925942.
In the Denial Actions, EPA largely reverted to its original
approach to eligibility consistent with its existing regulations
and the HollyFrontier decision. See April Denial at 21-22 (J.A.
2965-66). As relevant here, EPA clarified that, to receive an
extension of the initial blanket exemption, a small refinery
must have qualified for the initial blanket exemption based on
its average throughput in either 2004 or 2006; it need not have
continuously received extensions. Id. at 22 (J.A. 2966). EPA
also reiterated the requirement that a small refinery must have
sought and received the initial exemption, meaning it must
have submitted a verification letter to EPA. Id. (J.A. 2966).
Applying that approach, EPA determined that neither
Company A nor Company B was eligible for an extension
because, among other reasons, neither had submitted the
requisite verification letter to EPA to claim the initial
exemption. EPA accordingly concluded that neither was
eligible to petition for an extension of that exemption. It
therefore denied Company A’s and Company B’s remanded
2018 hardship petitions. See id. at 22-23 (J.A. 2966-67). And
it denied the companies’ pending 2019 and 2020 petitions. See
June Denial at 23-24 (J.A. 3144-45).

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The companies challenge EPA’s ineligibility
determination on various grounds. None is persuasive.
First, the companies contend that EPA’s approach in the
Denial Actions contradicts its regulations. In their view, 40
C.F.R. § 80.1441(b)(1) does not “purport to condition the
initial exemption on a verification letter.” Reply Br. 46.
Rather, the companies suggest, any refinery meeting the
statutory eligibility criteria automatically received the initial
blanket exemption, regardless of whether it claimed it by
submitting the verification letter. We disagree. From the
outset, EPA regulations used the verification letter to confirm
that a refinery qualified for and intended to use the exemption.
That is why the regulations specified that, “[i]f EPA finds that
a refiner provided false or inaccurate information regarding a
refinery’s crude throughput . . . in its small refinery
verification letter, the exemption will be void as of the effective
date of these regulations.” 40 C.F.R. § 80.1141(c). If a small
refinery can lose the initial exemption by filing a faulty
verification letter, the exemption is not automatically applied.
EPA permissibly required qualifying refineries to claim the
exemption by submission of the letter.
Second, Company A argues that, if the regulations mean
what EPA’s Denial Actions say they do—i.e., that to have
received the initial blanket exemption, a small refinery must
have submitted a verification letter—the regulations so
interpreted are contrary to the statute and must be set aside.
(Although Company B initially suggested the regulations
should be set aside, it retreated from that argument in the reply
brief.) In Company A’s view, a small refinery automatically
qualified for the initial blanket exemption if its crude oil
throughput was below 75,000 barrels per day on average in any
year before 2011. It contends that, to the extent the regulations

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40
add the requirement of a verification letter attesting to the
same, they are contrary to law.
For starters, the verification-letter rule is not new. EPA
promulgated it in 2007, raising the question whether Company
A’s statutory challenge is timely. The CAA mandates that a
challenge to EPA’s regulations be filed within 60 days of the
date of the regulation’s promulgation, unless the challenge “is
based solely on grounds arising after such sixtieth day,” in
which case it must “be filed within sixty days after such
grounds arise.” 42 U.S.C. § 7607(b)(1). The challenge
concededly was not raised during the initial sixty-day window;
Company A instead invoked the after-arising exception, which
enables a party to rely on an intervening legal development to
bring a claim that it “could not have raised” during the initial
sixty-day window. Honeywell Int’l, Inc. v. EPA, 705 F.3d 470,
473 (D.C. Cir. 2013); see also Sierra Club de Puerto Rico v.
EPA, 815 F.3d 22, 26-28 (D.C. Cir. 2016).
Here, Company A (or, technically, the previous owner of
its relevant refinery) could have raised a timely challenge to the
verification-letter requirement. If it thought its refinery
qualified as small, Company A would have had standing to
challenge the regulations at that time, seeking to benefit from
the exemption without submitting a verification letter.
Assuming Company A could have brought an after-arising
claim within sixty days of when its claim ripened (an issue on
which we take no position), that was, at the latest, in 2008,
when its average throughput first fell below 75,000 barrels. See
Company A, Comments on “Proposed RFS Small Refinery
Exemption Decision” at 5 & n.25 (Feb. 7, 2022).
Company A, however, chose not to bring a claim and
instead complied with the renewable fuel requirements in 2008,

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41
2009, and 2010. Because the company would have had
standing to challenge the verification-letter requirement as
contrary to the Act within sixty days after first qualifying as a
small refinery, it cannot now bring such a challenge. It is well
established that “‘the mere application of a regulation,’ without
anything more” is not after-arising grounds triggering the
section 7607(b)(1) exception. Sierra Club de Puerto Rico, 815
F.3d at 27 (quoting Am. Rd. & Transp. Builders Ass’n v. EPA,
705 F.3d 453, 458 (D.C. Cir. 2013)).
Company A contends that a timely challenge to the
verification-letter requirement “would have been speculative”
in 2008 because EPA had not yet spelled out that receipt of the
initial blanket exemption was a prerequisite to later obtaining
an individualized hardship exemption. Reply Br. 49 (quoting
Sierra Club de Puerto Rico, 815 F.3d at 27). But Company A
does not challenge EPA’s determination that a refinery seeking
an extension must show that it received the initial exemption.
Indeed, in light of the plain meaning of the statutory reference
to “extension,” as acknowledged in HollyFrontier, any such
challenge would be futile. Instead, Company A seeks to
challenge the verification-letter requirement itself. And, as
explained, Company A had every opportunity to bring that
challenge back in 2008. It therefore cannot do so now.
Third, Company B argues that EPA’s reasoning is
arbitrary and capricious because EPA failed to explain its
change in policy. Company B points to the fact that, before the
April Denial, EPA briefly granted Company B’s 2018 hardship
petition. See August 2019 Decision (J.A. 3518-19). But EPA
acknowledged that its approach in the April Denial was a
change from the approach it took in granting an unusually high
number of exemptions for 2018, including Company B’s. No
more was needed. When it initially granted the 2018

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42
exemptions, EPA did not mention the RFS program’s express
limitation of the hardship exemption to small refineries that had
received—and so were in a position to seek an “extension”
of—the initial blanket exemption. See 42 U.S.C.
§ 7545(o)(9)(B)(i). Nor had EPA grappled with that
requirement when it changed its approach in 2017. In the April
Denial, EPA acknowledged and reasonably explained that it
withdrew individual exemptions granted to refineries that did
not receive the blanket exemption, including Company B, in
accordance with its longstanding (if briefly disregarded)
regulation and to be “consistent with the Supreme Court’s
holding in HollyFrontier.” April Denial at 21 (J.A. 2965).
Under the circumstances, that explanation suffices.
Company B also argues that EPA’s reasoning is arbitrary
and capricious on its own terms. In support of the Company B
denial, EPA cited the Supreme Court’s statement in
HollyFrontier that hardship relief is available only to those
“small refineries in existence in 2008.” See id. at 22 & n.105
(J.A. 2966) (quoting 141 S. Ct. at 2181). Company B contends
that reasoning does not apply to it because Company B was in
existence in 2008.
EPA reasonably explained, however, that although
Company B existed in 2008, it was “in the same situation as a
new [post-2008] refinery” ineligible for hardship relief. EPA,
Company B - June 2022 Denial Action (June 3, 2022). That
was because, before 2017, the company generated crude oil as
a byproduct and sold it to a local refiner, and so the company
did not incur renewable fuel obligations. It was only when that
local refiner stopped purchasing Company B’s crude oil around
2017—long after the RFS program was in place—that
Company B began refining the crude oil on its own and
incurring renewable fuel obligations under the RFS program.

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43
EPA explained that, before changing its operations in 2017 to
refine its own crude oil, Company B, like a new refinery, “had
the ability to consider whether [it] believe[d] the establishment
of the RFS program and its requirements [would] cause
economic hardship before beginning operations.” Id.
Company B objects that EPA’s analysis was nonetheless
arbitrary and capricious because, unlike a new refinery that
could “assess the markets” and the concomitant costs before
entering them, Company B did not voluntarily enter the
transportation fuel market; it did so “only as a last resort—to
ensure that its byproducts were not waste that could harm the
environment.” Pet. Br. 98. Even accounting for those
considerations, EPA’s explanation as to why it deemed
Company B ineligible was reasonable. If it was not profitable
for Company B to start refining crude oil in 2017, it could have
stayed out of the refining business. See Company B Denial. In
that sense, then, the company did voluntarily opt into the RFS
program like a new refinery.
Finally, Company A argues that, even if EPA’s
ineligibility determination were permissible, the agency should
not have applied it “retroactively” after the years from which
Company A sought compliance relief had passed. EPA
announced its intention to deny the hardship petitions in
December 2021—after the end of the compliance years at issue
for Company A’s refinery (2018, 2019, and 2020). See EPA,
Proposed RFS Small Refinery Exemption Decision (December
2021) (J.A. 224). If it had known the refinery was ineligible
for an exemption, Company A asserts, it could have “adjust[ed]
[its] compliance strateg[y] []or ma[de] [an] informed decision[]
about how much crude oil to process in those years.” Reply
Br. 40. Therefore, the company concludes, EPA should have
withheld the effect of the denials by, for example, extending

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44
the Alternative Compliance Actions to cover not only 2018 but
also 2019 and 2020.13
We disagree. “The general principle is that when as an
incident of its adjudicatory function an agency interprets a
statute, it may apply that new interpretation in the proceeding
before it.” Clark-Cowlitz Joint Operating Agency v. FERC,
826 F.2d 1074, 1081 (D.C. Cir. 1987) (en banc). There is an
exception for cases in which applying a new rule to preexisting
conduct would “work a ‘manifest injustice.’” Id. (quoting
Thorpe v. Housing Auth. of City of Durham, 393 U.S. 268, 282
(1969)). We have employed various tests to evaluate whether
the application of a new agency rule to parties to an
administrative adjudication will work a manifest injustice. See
United Food & Com. Workers Int’l Union, AFL-CIO, Local
150-A v. NLRB, 1 F.3d 24, 34-35 (D.C. Cir. 1993) (reviewing
the tests). “Although our multi-factor tests have been stated in
terms of a balancing of co-equal factors, each includes one that,
in practice, has been given primary importance; namely, the
critical question of whether the challenged decision ‘creates a
new rule, either by overruling past precedents relied upon by
the parties or because it was an issue of first impression.’” Id.
at 34 (quoting District Lodge 64 v. NLRB, 949 F.2d 441, 447
(D.C. Cir. 1991)). Characterizing the Denial Actions as
imposing a new eligibility rule, Company A argues that EPA
13 As explained, supra n.12, we do not reach the challenges to the
retroactive application of EPA’s approach to adjudicating hardship
petitions because we hold that approach is contrary to law and
arbitrary and capricious. By contrast, since we hold that EPA’s
eligibility approach is lawful, we must consider Company A’s
argument that it must not be applied retroactively.

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45
should have “withheld” the economic consequences of those
Actions by granting additional compliance relief.
Company A’s argument fails because, for purposes of
applying a new ruling to prior conduct, not all precedent is
created equal. The mere fact that an agency “modif[ies]
existing law” is not enough to justify withholding its new
ruling’s effect on parties to the agency adjudication. See
District Lodge 64, 949 F.2d at 447. The overruled precedent
must have been “clear [and] consistent” during the period of
the alleged reliance. Id. If it did not “rise to the level of a well
established practice,” then reliance on that precedent is likely
unreasonable. Clark-Cowlitz, 826 F.2d at 1083 (internal
quotation marks omitted). For, in the end, our approach
“focuses on the reliance of the parties before the tribunal.”
Sanitary Truck Drivers & Helpers Loc. 350 v. NLRB, 45 F.4th
38, 45 (D.C. Cir. 2022).
Here, EPA’s approach to eligibility was not “settled”
during the period of Company A’s asserted reliance. See Am.
Tel. & Tel. Co. v. FCC, 454 F.3d 329, 332 (D.C. Cir. 2006).
As mentioned, “[t]hrough at least the first quarter of 2016, the
EPA itself limited ‘extensions’ to only those small refineries
that qualified for the original blanket exemption.” RFA, 948
F.3d at 1247. For example, EPA denied a hardship petition in
2016 on the ground that the petitioning refinery did not exist in
2006 and therefore “could not have received the initial blanket
exemption.” See April Denial at 20 (J.A. 2964). In 2017, EPA
granted some extensions to refineries that had not qualified for
the original exemption before reasserting the receipt-of-initial-
exemption requirement in 2022. See id. (J.A. 2964). That
history confirms that EPA’s approach in the Denial Actions “is
not the sort of radical transformation whose retroactive

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46
application is likely to be unfair.” District Lodge 64, 949 F.2d
at 448.
EPA’s decision to apply the Denial Actions’ eligibility
approach to Company A is further supported by the strength of
EPA’s reasons in support of that approach. “[A]dministrative
agencies have greater discretion to impose their rulings
retroactively when they do so in response to judicial review,
that is, when the purpose of retroactive application is to rectify
legal mistakes identified by a federal court.” Verizon, 269 F.3d
at 1111. That is the case here. The renewable fuel producers’
challenge in the Tenth Circuit culminated in the Supreme
Court’s acknowledgment that the RFS program forecloses
hardship relief for small refineries that did not receive the
initial blanket exemption. HollyFrontier, 141 S. Ct. at 2181.
Thus, as EPA recognized, the eligibility approach articulated
in the Denial Actions comported with its own rules and was
“consistent with the Supreme Court’s holding in
HollyFrontier.” April Denial at 21 (J.A. 2965). Because the
Denial Actions’ updated eligibility requirement was adopted to
align the RFS program with the statutory text and clear
implications of the Supreme Court’s ruling in HollyFrontier,
EPA’s decision to apply that approach retroactively was
reasonable.

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47
* * *
In sum, we conclude that EPA’s denials of Company A’s
and Company B’s hardship petitions were lawful and
reasonable. We therefore deny their petitions for review.
V.
Finally, we turn to the three petitions challenging the
Alternative Compliance Actions, consolidated under No. 22-
1074. The Compliance Actions apply to the 31 small refineries
that initially received small refinery exemptions for 2016,
2017, or 2018 but whose exemptions were vacated and later
denied in the Denial Actions. The Compliance Actions allow
these refineries to satisfy their RIN obligations “without
retiring any additional RINs.” April Compliance Action at 1
(J.A. (22-1074) 4); June Compliance Action at 2 (J.A. (22-
1074) 362). The first petition, from Growth Energy, challenges
EPA’s authority to issue the Compliance Actions. The other
two petitions, from small refineries seeking hardship
exemptions, argue that the April Compliance Action did not
extend relief far enough with respect to their 2018 RIN
obligations.14
A.
We first address Growth Energy’s petition. Growth
Energy is an association of renewable fuels producers that
primarily produce conventional ethanol. Growth Energy
challenges EPA’s legal authority to issue the Alternative
Compliance Actions. Explaining that Congress created several
specific mechanisms for waiving RFS obligations, Growth
14 The refineries do not challenge the June Compliance Action.

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48
Energy argues that this scheme precludes EPA from relieving
refineries from their RFS obligations through other regulatory
actions. See 42 U.S.C. § 7545(o)(7)(A) (general waiver); id.
§ 7545(o)(7)(D) (cellulosic waiver); id. § 7545(o)(9) (small
refinery hardship exemption). Growth Energy maintains that,
when no statutory waiver or exemption applies, the CAA
requires EPA to “ensure[]” the renewable fuel volume
requirements are met. Id. § 7545(o)(3)(B)(i).
We do not reach the merits of this petition, however,
because Growth Energy has failed to meet its burden of
establishing standing.
1.
To establish associational standing, an organization must
show that “(1) ‘its members would otherwise have standing to
sue in their own right;’ (2) ‘the interests it seeks to protect are
germane to the organization’s purpose;’ and (3) ‘neither the
claim asserted nor the relief requested requires the participation
of individual members in the lawsuit.’” Ctr. for Sustainable
Econ. v. Jewell, 779 F.3d 588, 596 (D.C. Cir. 2015) (quoting
Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343
(1977)); see also Sierra Club v. EPA, 754 F.3d 995, 999 (D.C.
Cir. 2014). Members have standing to sue in their own right if
they can “show (i) that [they] suffered an injury in fact that is
concrete, particularized, and actual or imminent; (ii) that the
injury was likely caused by the defendant; and (iii) that the
injury would likely be redressed by judicial relief.”
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021).
The petitioner bears the burden of establishing standing.
Chamber of Commerce v. EPA, 642 F.3d 192, 200 (D.C. Cir.
2011).

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Because Growth Energy is not the object of the challenged
Alternative Compliance Actions, standing is “substantially
more difficult” to establish. See Lujan v. Defs. of Wildlife, 504
U.S. 555, 562 (1992) (quoting, inter alia, Warth v. Seldin, 422
U.S. 490, 505 (1975)). A court cannot redress an injury “that
results from the independent action of some third party not
before the court.” Simon v. E. Ky. Welfare Rights Org., 426
U.S. 26, 41-42 (1976). A petitioner must provide reason to
believe a government regulation will “significantly affect[]”
the decisions of the third party. Branton v. FCC, 993 F.2d 906,
912 (D.C. Cir. 1993). “Speculative and unsupported
assumptions regarding the future actions of third-party market
participants are insufficient.” Crete Carrier Corp. v. EPA, 363
F.3d 490, 494 (D.C. Cir. 2004). “[T]he petitioners carry the
burden of adducing facts showing that those third-party choices
have been or will be made in such manner as to produce
causation and permit redressability of injury.” Chamber of
Commerce, 642 F.3d at 201 (cleaned up). Growth Energy may
meet its burden by “citing any record evidence relevant to its
claim of standing and, if necessary, appending to its filing
additional affidavits or other evidence sufficient to support its
claim.” Ohio v. EPA, 98 F.4th 288, 300 (D.C. Cir. 2024)
(cleaned up).
2.
Growth Energy’s theory of standing turns on the
relationship between RFS obligations and the demand for
renewable fuels from refineries regulated by the RFS program.
In its opening brief, Growth Energy states that the Compliance
Actions reduce the net demand for its members’ products and
that the “destruction of demand” constitutes an injury in fact.
Growth Energy Br. 15. To support its standing, Growth Energy
submits a single declaration from its CEO that lists the

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organization’s members and their share of the renewable fuels
market. The CEO avers that three-quarters of the renewable
fuel used for RFS compliance is ethanol, and Growth Energy’s
members produce 57 percent of all ethanol. Moreover, the
CEO asserts that the Compliance Actions will “substantially
reduce the future demand for Growth Energy’s members’
renewable-fuel products” by reducing the renewable fuel
obligations for 31 small refineries. Decl. of Emily Skor at 4.
Even when replying to Intervenors’ challenge to standing,
Growth Energy offers no additional analysis and attaches only
another declaration from its CEO simply reiterating that the
Compliance Actions will reduce demand and harm its
members. Cf. Sierra Club v. EPA, 292 F.3d 895, 900 (D.C.
Cir. 2002) (explaining that affidavits in support of standing
generally should be made in “the petitioner’s opening brief—
and not . . . in reply to the brief of the respondent agency”).
Such sparse and conclusory claims about competitive
injuries are insufficient to establish standing. See Ohio, 98
F.4th at 303 (holding plaintiffs failed to “cite any record
evidence or to file additional affidavits or other evidence
sufficient to support” their standing (cleaned up)). Growth
Energy relies on the market share of its members, but market
share alone does not demonstrate that EPA’s Compliance
Actions will cause these ethanol producers (or any others) a
present or future economic injury. While Growth Energy has
alleged that some future reduction in demand for renewable
fuels is possible, nothing in the briefing or record suggests that
a reduction in overall market demand is “certainly impending”
as a result of the Compliance Actions. Clapper v. Amnesty Int’l
USA, 568 U.S. 398, 402 (2013).
The dynamics of the RIN market are not so clear that we
can assume without further information or analysis that

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waiving some RIN obligations for 2018 will reduce 2024
demand for Growth Energy’s members’ renewable fuels. The
Compliance Actions here cover only 31 small refineries, and
Growth Energy has offered no evidence about how a waiver of
RFS obligations for those refineries will change the overall
market demand for renewable fuels.15 That market includes
many actors beyond the 31 small refineries.
Growth Energy also maintains that courts have “routinely”
found Growth Energy had standing in other cases challenging
EPA actions, which, it implies, supports standing here. But
Growth Energy’s past demonstration of standing to challenge
different EPA actions does not diminish its burden to establish
standing in this case. Cf. TransUnion, 141 S. Ct. at 2208
(“[S]tanding is not dispensed in gross; rather, plaintiffs must
demonstrate standing for each claim that they press.”).
Moreover, the previous cases Growth Energy cites for this
proposition do not opine on Growth Energy’s standing. But
they resolve other parties’ standing based on more detailed
evidence than Growth Energy has provided here. For example,
in Growth Energy, environmental petitioners challenged an
EPA rule increasing the annual fuel target for biofuels. 5 F.4th
at 28. Relying on a report and declaration explaining how
increasing the volume of required biofuels would increase
demand for the feedstocks that create those biofuels, we held
that environmental petitioners would experience injury. Id.;
see also Nat’l Biodiesel Bd. v. EPA, 843 F.3d 1010, 1015 (D.C.
15 By contrast, the Tenth Circuit found a similar biofuels coalition
had standing to challenge EPA’s grant of a hardship exemption when
the coalition included an affidavit from an economist who modeled
how the actual demand for renewable fuels would be affected by RFS
exemptions. RFA, 948 F.3d at 1232-33 (10th Cir. 2020), vacated,
No. 18-9533, 2021 WL 8269239 (10th Cir. July 27, 2021).

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Cir. 2016) (holding that “economic actors suffer constitutional
injury in fact when agencies . . . allow increased competition”
(cleaned up)). In contrast to those earlier cases, Growth Energy
submitted no evidence whatsoever about how vacating these
Compliance Actions would affect the overall demand for
renewable fuels.
With respect to Article III standing, past performance is no
guarantee of future results. Growth Energy failed to establish
its members have standing to challenge the Alternative
Compliance Actions. Accordingly, we dismiss Growth
Energy’s petition for review.
B.
Next, we turn to the two small refineries’ challenges.
Sinclair Wyoming Refining Company (“Sinclair”) and
Wynnewood Refining Company (“Wynnewood”), along with
34 other small refineries, applied for hardship exemptions in
2018. In March 2019, while waiting for EPA to decide their
petitions, both Wynnewood and Sinclair retired RINs to satisfy
their 2018 RFS obligations.
In August 2019, applying its longstanding approach of
granting exemption petitions based on the DOE matrix, EPA
granted 31 of the 2018 hardship petitions, including
Wynnewood’s. See August 2019 Decision (J.A. 3518-19).
EPA contemporaneously returned the RINs of the refineries for
which it granted exemptions.
EPA denied the remaining five petitions, including
Sinclair’s, based on the DOE matrix. Id. (J.A. 3518-19). In
Sinclair’s view, its denial resulted from a clerical error: EPA
failed to convey a necessary document to DOE, which resulted

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in a lower DOE matrix score. In January 2021, EPA reversed
its decision and granted Sinclair’s 2018 small refinery
exemption. EPA, Decision on the Small Refinery Exemption
Petitions from the Sinclair Wyoming Refinery for 2018 and
2019 and the Sinclair Casper Refinery for 2019 (2021) (J.A.
(22-1074) 630-32, 782). It did not, however, return the RINs
Sinclair had already retired for the 2018 compliance year.
Not satisfied with EPA’s actions, both refineries sought
redress, first with EPA and then in petitions for review.
Wynnewood requested EPA reissue its RINs, rather than
merely returning them, to remedy the value the RINs lost while
awaiting EPA’s delayed decision on its hardship petition.
Letter from Wynnewood to EPA, Re: Petition for Hardship
Relief Under EPA’s Renewable Fuel Standard at 2 (Sept. 20,
2019) (J.A. (22-1074) 670). Some of Wynnewood’s RINs had
been 2017 carryovers, so they had expired by the time EPA
returned them. The remaining RINs—from 2018—had
depreciated in value since Wynnewood retired them. When
EPA declined, Wynnewood petitioned for review in the Tenth
Circuit.16 Sinclair requested EPA return the RINs it had retired
before receiving its exemption. When EPA declined, Sinclair
petitioned the Tenth Circuit for review.
While Wynnewood’s and Sinclair’s cases were pending,
the Supreme Court decided HollyFrontier, 594 U.S. 382. In
response, EPA moved—unopposed—to remand both
refineries’ pending cases. We remanded Wynnewood’s case
for EPA to reassess along with the rest of the 2018 petitions
affected by HollyFrontier. The Tenth Circuit vacated and
16 The case was transferred to this circuit by consent of both
parties after we granted a motion to consolidate Wynnewood’s case
with Sinclair’s case challenging the 2018 denials.

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remanded Sinclair’s exemption. Thus, at the time of the 2022
Denial Actions, Wynnewood’s exemption had been remanded
but not vacated, and Sinclair’s exemption had been vacated and
remanded. That brings us to the present action.
EPA denied both Sinclair’s and Wynnewood’s 2018
hardship petitions in the April Denial. To mitigate the hardship
of revoking previously granted exemptions, EPA issued the
April Compliance Action. The Compliance Action authorized
Wynnewood to show compliance through alternative methods,
but it was silent on Wynnewood’s request for RIN reissuance.
The Compliance Action explicitly excluded Sinclair, along
with the four other refineries whose hardship petitions EPA
initially denied, from all alternative relief, effectively denying
Sinclair’s petition for alternative compliance and RIN
reissuance. April Compliance Action at 1 n.5 (J.A. (22-1074)
4 n.5).
Both refineries petitioned for review of the April
Compliance Action.
1.
Sinclair argues EPA’s April Compliance Action was
arbitrary and capricious because EPA excluded Sinclair
without explaining why it was treated differently from
similarly situated refineries. It is “black letter administrative
law” that “like cases must receive like treatment.” Baltimore
Gas & Elec. Co. v. FERC, 954 F.3d 279, 286 (D.C. Cir. 2020)
(cleaned up). Sinclair argues EPA failed to provide an
adequate explanation for treating Sinclair differently because
EPA simply noted in a conclusory footnote that five refineries
were excluded from the alternative compliance relief and made
no specific mention of Sinclair. Sinclair also argues it is

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fundamentally the same as the 31 refineries that received relief,
so the reason EPA gave for treating it differently is flawed.
We disagree.
While EPA certainly could have provided more detail, we
conclude that the agency adequately explained its exclusion of
Sinclair from the April Compliance Action. EPA set forth that
its purpose in issuing the Compliance Action was to address
the “virtually insurmountable obstacles” to small refineries
whose hardship exemptions EPA had initially granted and that
now needed to purchase RINs to meet their newly reimposed
2018 obligations. April Compliance Action at 1 (J.A. (22-
1074) 4). EPA detailed its concern about the practical effects
of asking previously exempted refineries to resubmit RINs. Id.
at 10-14 (J.A. (22-1074) 13-17). It concluded that “because of
the passage of time between when [the refineries] received
their original [exemption] grants and the [April] Denial, they
either no longer hold the RINs they once acquired to
demonstrate compliance or they do not hold RINs in sufficient
amounts to meet their combined RFS obligations.” Id. at 7
(J.A. (22-1074) 10). EPA also explained its concern about “the
impacts . . . on the RFS program as a whole” that a sudden
increase in demand for RINs would cause. Id. at 9 (J.A. (22-
1074) 12).
Relying on this reasoning, EPA explained it was excluding
refineries whose hardship petitions it originally denied (in
August 2019) because they neither faced challenges in meeting
new obligations nor contributed to an increase in new demand
for RINs. Id. at 1 n.5 (J.A. (22-1074) 4 n.5). Sinclair is one of
those refineries. Its hardship petition was initially denied, it
retired its RINs, and EPA never returned them. We recognize
that EPA later granted Sinclair a small refinery exemption in
January 2021, but Sinclair’s RINs were never returned, and the

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Tenth Circuit vacated Sinclair’s exemption after
HollyFrontier. At the time of the Denial Action, therefore,
Sinclair no longer had an exemption.
It was not unreasonable for EPA to conclude that Sinclair
is not similarly situated to the 31 small refineries whose
exemptions were granted in August 2019 and their RINs
returned. After the April Denial, those refineries would have
been obliged to purchase and submit new RINs. By contrast,
Sinclair’s RINs were never returned, and so after the April
Denial, it was not obliged to purchase or submit RINs. EPA’s
explanation of its discretionary relief was sufficient. EPA
made clear the criteria for inclusion in the April Compliance
Action, and Sinclair did not meet them. On its own terms, the
Compliance Action was not arbitrary and capricious.17
Sinclair also argues there is no real difference between
Sinclair and a refinery that initially received the 2018
exemption because Sinclair should have received that
exemption. The only reason EPA denied its initial petition,
Sinclair argues, was that EPA failed to transmit a document to
DOE. If EPA had properly handled the paperwork, Sinclair
would have received an exemption. Thus, Sinclair argues, it
was essentially the same as the other refineries.
EPA contests whether Sinclair would have received a 2018
exemption even without the error. But we need not decide
whether Sinclair should have received the initial exemption.
EPA reasonably distinguished refineries based on whether they
received an exemption, not whether they should have received
17 Because Growth Energy failed to demonstrate standing, we do
not reach the question of whether the Compliance Action was within
EPA’s authority under the CAA.

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an exemption. The difference matters. EPA returned RINs to
those refineries that received the August 2019 exemption.
Requiring them to resubmit RINs now poses the harms to the
RIN market that EPA described at length in the April
Compliance Action. By contrast, refineries that did not receive
the exemption, regardless of eligibility, did not have their RINs
returned. This is the case for Sinclair. Even when Sinclair
received a belated exemption in January 2021, EPA did not
return Sinclair’s RINs.
Although Sinclair’s small refinery exemption petition took
an unusual path, the bottom line is that Sinclair retired RINs,
EPA never returned them, and on remand Sinclair’s exemption
had been vacated. EPA reasonably concluded that Sinclair
differed from the 31 refineries that received relief in the April
Compliance Action. Accordingly, we deny Sinclair’s petition
for review.18
2.
While Sinclair was entirely excluded from the April
Compliance Action, Wynnewood received compliance relief.
Its claim is thus narrower than Sinclair’s: Wynnewood argues
the April Compliance Action was arbitrary and capricious
because EPA did not reissue Wynnewood’s RINs in the
Compliance Action. We do not reach the merits of this claim,
18 Sinclair’s other arguments are similarly unavailing. First,
Sinclair argues EPA ignored an important aspect of the problem
when explaining why Sinclair was not entitled to relief under the
April Compliance Action. For the reasons above, we conclude
EPA’s explanation was sufficient. Second, Sinclair argues we should
instruct EPA not only to return its RINs but also to reissue them.
We need not reach this issue, however, because EPA did not err in
denying Sinclair alternative compliance relief.

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however, because EPA did not deny Wynnewood’s request for
RIN reissuance in the April Compliance Action—rather, EPA
was silent on Wynnewood’s request.
The Administrative Procedure Act instructs courts to “hold
unlawful and set aside agency action, findings, and
conclusions” that are “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2). The problem for Wynnewood is that there has been
no agency action, finding, or conclusion on Wynnewood’s
request for RIN reissuance. EPA did not rule on Wynnewood’s
request for RIN reissuance in the Compliance Action, which is
silent on the matter. As explained above, the Compliance
Action was tailored to remedy the effects of asking previously
exempted refineries to resubmit RINs for years long since
passed. By contrast, reissuing RINs is about the value of the
RINs, not their availability. That type of relief was simply not
addressed in the Compliance Action. Nor does Wynnewood
point to any other action taken by EPA that addressed the RIN
reissuance request.
Because the Compliance Action does not resolve
Wynnewood’s request for RIN reissuance, we cannot review
the Compliance Action for its treatment of Wynnewood’s
claim. Accordingly, we dismiss Wynnewood’s petition for
review.19
19 We note that nothing in this decision forecloses Wynnewood’s
ability to seek review down the road. Wynnewood may again request
EPA to reissue its RINs, as it did when EPA first returned the RINs
in 2019. If EPA denies that request, Wynnewood could petition for
review of that action. If EPA fails to act, Wynnewood could petition
the court to compel a response.

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* * *
In sum, with respect to the petitions in No. 22-1074, we
dismiss Growth Energy’s petition for lack of standing; we deny
Sinclair’s petition because EPA’s decision was adequately
explained; and we dismiss Wynnewood’s petition because
there was no agency action with respect to its claim.
VI.
For the foregoing reasons, we deny the petitions of
Company A and Company B but otherwise grant the petitions
for review in No. 22-1073, vacate the Denial Actions, and
remand to EPA for further proceedings. In No. 22-1074, we
dismiss Growth Energy’s and Wynnewood’s petitions and
deny Sinclair’s petition.
So ordered.

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