Center for Biological Diversity v. Environmental Protection Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 1, 2024 Decided June 20, 2025
No. 23-1177
CENTER FOR BIOLOGICAL DIVERSITY,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.,
RESPONDENTS
AMERICAN PETROLEUM INSTITUTE, ET AL.,
INTERVENORS
Consolidated with 23-1240, 23-1243, 23-1246, 23-1247,
23-1249
On Petitions for Review of a Final Rule
of the Environmental Protection Agency
Elizabeth B. Dawson and Jonathan G. Hardin argued the
causes for Refiner Petitioners. With them on the briefs were
Robert J. Meyers, Alexandra Magill Bromer, Michael R.
Huston, Jeffrey R. Holmstead, Brittany M. Pemberton, Richard
S. Moskowitz, Tyler J. Kubik, and Karl J. Worsham.

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Margaret A. Coulter and Carrie Apfel argued the causes
for Environmental Petitioners. With them on the briefs were
Jason C. Rylander, Peter Lehner, and Ashley Ingram.
Sandra P. Franco argued the cause for petitioner
Sustainable Advanced Biofuel Refiners Coalition. With her on
the briefs was Jerome C. Muys, Jr.
Jeremy M. Bylund argued the cause for petitioner Neste
US, Inc. With him on the briefs were Amina Dammann, Ilana
Saltzbart, Ashley C. Parrish, and K. Paige Tenkhoff.
Alexander M. Purpuro and John H. Martin, Attorneys,
U.S. Department of Justice, argued the causes for respondents.
With them on the brief were Todd Kim, Assistant Attorney
General, and Kimere J. Kimball and Joseph Crusham,
Attorneys.
David M. Lehn argued the cause for Biofuel Intervenors
responding to Refiner Petitioners’ brief. With him on the brief
were Matthew W. Morrison, Shelby L. Dyl, Sandra P. Franco,
Bryan Killian, and Douglas Hastings.
Ethan G. Shenkman argued the cause for Biofuel
Intervenors responding to Environmental Petitioners’ brief.
With him on the brief were Matthew W. Morrison, Bryan
Killian, and Douglas Hastings.
Robert J. Meyers, Elizabeth B. Dawson, Richard S.
Moskowitz, Tyler Kubik, Robert A. Long, Jr., Kevin F. King,
Thomas R. Brugato, MaKade C. Claypool, John Wagner, and
Michele Schoeppe were on the brief for intervenors American
Fuel & Petrochemical Manufacturers and American Petroleum
Institute in support of respondents. Daniel G. Randolph
entered an appearance.

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Kyle Danish, Tyson C. Kade, and Charlene Koski were on
the brief for amici curiae Agricultural, Biomass, and
Greenhouse Gas Lifecycle Scientists in support of respondents.
Before: PILLARD, KATSAS and CHILDS, Circuit Judges.
Opinion for the Court filed PER CURIAM:
Background
A. The Renewable Fuel Standards Program
B. The Endangered Species Act
C. The Set Rule
D. Petitioners
E. Jurisdiction and Standards of Review
Discussion
I. Environmental Petitioners
A. Clean Air Act
B. Endangered Species Act
C. Remedy
II. Refiner Petitioners
A. Late and Supplemental Standards
B. All Volumes
C. Conventional Renewable Fuels
D. Cellulosic Biofuels
E. RIN Cost-Passthrough Theory
III. Neste
A. Recordkeeping Provisions
B. RIN Generation Provision
IV. SABR
Conclusion
Opinion concurring in part and dissenting in part filed by
Circuit Judge KATSAS.

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PER CURIAM: By now, EPA is accustomed to challenges
to its implementation of the Clean Air Act’s (CAA) Renewable
Fuel Standards (RFS) Program. The RFS Program is generally
recognized as Congress’s attempt to promote renewable energy
and lower greenhouse gas emissions by requiring the petroleum
industry to introduce increasing volumes of renewable fuel
from year to year. See 42 U.S.C. § 7545(o). Last year, we
reviewed RFS Program standards for the years 2020, 2021, and
2022. See Sinclair Wyo. Refin. Co. LLC v. EPA (Sinclair Wyo.
I), 101 F.4th 871, 877 (D.C. Cir. 2024). We now consider
consolidated petitions for review of EPA’s RFS Program
standards for the years 2023, 2024, and 2025. See Renewable
Fuel Standard (RFS) Program: Standards for 2023-2025 and
Other Changes, 88 Fed. Reg. 44,468 (July 12, 2023)
(hereinafter the Set Rule).
Petitioners representing two nonprofit conservation
organizations (Environmental Petitioners), many refiners of
petroleum products (Refiner Petitioners), a renewable fuel
producer (Neste), and the Sustainable Advanced Biofuel
Refiners Coalition (SABR), a trade association representing
certain biodiesel stakeholders, filed challenges to the Set Rule.
Only two of those challenges have merit: the Environmental
Petitioners’ claims that (1) EPA failed to adequately explain
why—for purposes of addressing lifecycle greenhouse gas
(GHG) emissions associated with crop-based biofuels—it re-
used the results of an admittedly outdated study instead of
newer data collected from EPA’s literature review of the most
reliable post-2010 findings; and (2) the United States Fish and
Wildlife Service (FWS) failed to adequately explain how its
conclusion that the Set Rule will have “no effect” on
endangered species or their critical habitats accords with the
legal framework set forth in its Consultation Handbook and the
implementing regulations of the Endangered Species Act
(ESA). We therefore grant Environmental Petitioners’ petition

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only to the extent that we will remand the Set Rule to EPA and
FWS without vacatur for further consideration and explanation.
We deny the petitions of Neste and Refiner Petitioners and
dismiss SABR’s petition for untimeliness and lack of standing.
BACKGROUND
Because of the successive nature of challenges to the RFS
Program, we provide a complete but streamlined explanation
of the statutory scheme for purposes of understanding the
issues in this appeal. Additional background is reflected in
prior decisions involving challenges to the Program.1
A. The Renewable Fuel Standards Program
Congress created the RFS Program by way of the Energy
Policy Act of 2005, codified in Section 211(o) of the CAA (42
U.S.C. § 7545(o)), and further expanded it in the Energy
Independence and Security Act of 2007. Overview of RFS
Program, EPA (last updated May 16, 2024),
https://perma.cc/TV47-8CUQ. The RFS Program “requires an
increasing amount of renewable fuel to be introduced into the
Nation’s transportation fuel supply each year.” Ams. for Clean
Energy v. EPA (ACE), 864 F.3d 691, 696 (D.C. Cir. 2017)
(referencing 42 U.S.C. § 7545(o)). “To accomplish th[is]
goal[], the Program regulates suppliers through ‘applicable
volume[s]’—mandatory and annually increasing quantities of
1 See Nat’l Petrochemical & Refiners Ass’n v. EPA, 630 F.3d 145
(D.C. Cir. 2010); Am. Petroleum Inst. v. EPA, 706 F.3d 474 (D.C.
Cir. 2013); Monroe Energy, LLC v. EPA, 750 F.3d 909 (D.C. Cir.
2014); Ams. for Clean Energy v. EPA, 864 F.3d 691 (D.C. Cir. 2017);
Alon Refin. Krotz Springs, Inc. v. EPA, 936 F.3d 628 (D.C. Cir.
2019); Am. Fuel & Petrochemical Mfrs. v. EPA, 937 F.3d 559 (D.C.
Cir. 2019); Growth Energy v. EPA, 5 F.4th 1 (D.C. Cir. 2021);
Wynnewood Refin. Co., LLC v. EPA, 77 F.4th 767 (D.C. Cir. 2023).

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renewable fuels that must be ‘introduced into commerce in the
United States’ each year—and tasks the EPA Administrator
with ‘ensur[ing]’ that those annual targets are met.” Am. Fuel
& Petrochemical Mfrs. v. EPA, 937 F.3d 559, 568 (D.C. Cir.
2019) (quoting 42 U.S.C. § 7545(o)(2)(A)(i)). Accordingly,
Congress charged EPA with promulgating regulations to
ensure that each requisite type of fuel introduced into
commerce in the United States satisfies the RFS Program’s
applicable volume requirements. 42 U.S.C. §
7545(o)(2)(A)(i).
“After EPA determines the volume requirements for the
various categories of renewable fuel, it has a ‘statutory
mandate’ to ‘ensure[ ]’ that those requirements are met,” which
it fulfills “by translating the annual volume requirements into
‘percentage standards,’” ACE, 864 F.3d at 698-99 (citations
omitted), i.e. what percentage of the nation’s transportation
fuel must be comprised of each congressionally specified
renewable fuel. “The percentage standards inform each
obligated party of how much renewable fuel it must introduce
into U.S. commerce based on the volumes of fossil-based
gasoline or diesel it imports or produces.” Id. at 699. “Once
EPA issues a rule informing obligated parties . . . of their
renewable fuel obligations, it is up to the obligated parties to
comply with the statute.” Id.
The statute provides EPA latitude to impose “renewable
fuel obligation[s]” on “refineries, blenders, and importers,” as
appropriate. 42 U.S.C. § 7545(o)(3)(B)(ii)(I). EPA has chosen
by rule to impose obligations only on parties that introduce
fossil fuels into the United States economy: refiners and
importers. See Alon Refin. Krotz Springs, Inc. v. EPA, 936 F.3d
628, 648-53 (D.C. Cir. 2019); 40 C.F.R. § 80.2 (designating
obligated parties). Obligated parties must purchase compliance
credits known as Renewable Identification Numbers (RINs)

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from renewable fuel producers in volumes sufficient to meet
their percentage standard obligations and then prove their
compliance annually by retiring those RINs with EPA. 42
U.S.C. § 7545(o)(5); 40 C.F.R. §§ 80.2, 80.1426, 80.1427(a),
80.1428(b).
The RFS Program establishes volumes for four
congressionally chosen categories of renewable fuel: (1)
cellulosic biofuel; (2) biomass-based diesel; (3) advanced
biofuel; and (4) total renewable fuel. 42 U.S.C.
§ 7545(o)(1)(B), (D), (E), (J). The categories vary in their
renewable biomass sources and their GHG emissions.
According to the CAA, biofuels used to meet RFS Program
obligations must achieve “certain GHG reductions based on a
lifecycle analysis (LCA).” 88 Fed. Reg. at 44,500. Each
category of fuel under the program must reduce GHG
emissions by a certain percentage from the baseline established
by petroleum-based fuels. Id. In general, to qualify as a
renewable fuel under the program, a fuel must be produced
from approved feedstocks and have lifecycle GHG emissions
at least 20 percent less than the baseline. Id. Advanced
biofuels and biomass-based diesel must have at least 50 percent
lower GHG emissions than baseline fuels, “while cellulosic
biofuel is required to have lifecycle emissions at least 60
percent less than baseline fuels.” Id.
The renewable fuel types “are ‘nested,’ meaning that
cellulosic biofuel and biomass-based diesel are kinds of
advanced biofuel, and advanced biofuel in turn is a kind of
renewable fuel that may be credited toward the total renewable
fuel obligation.” ACE, 864 F.3d at 697-98. In this regard,
nested RINs satisfy obligations for all categories that include
them. For example, cellulosic biofuel is counted toward its
own volume obligation, the advanced biofuel volume

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obligation, and the total renewable fuel volume obligation. Id.
at 698.
The statute contains tables that set the annual, nationally
applicable volume requirements for each renewable fuel
category: cellulosic biofuel, advanced biofuel, and total
renewable fuel through the year 2022; and biomass-based
diesel through 2012. 42 U.S.C. § 7545(o)(2)(B)(i). For later
years, Congress gave EPA statutory authority to set applicable
volumes and directed it to base the volume numbers on a
review of the implementation of the program in previous years
and an analysis of the six factors (set criteria) found in 42
U.S.C. § 7545(o)(2)(B)(ii). The set criteria are:
(I) the impact of the production and use of renewable
fuels on the environment, including on air quality,
climate change, conversion of wetlands, ecosystems,
wildlife habitat, water quality, and water supply;
(II) the impact of renewable fuels on the energy
security of the United States;
(III) the expected annual rate of future commercial
production of renewable fuels, including advanced
biofuels in each category (cellulosic biofuel and
biomass-based diesel);
(IV) the impact of renewable fuels on the
infrastructure of the United States, including
deliverability of materials, goods, and products other
than renewable fuel, and the sufficiency of
infrastructure to deliver and use renewable fuel;
(V) the impact of the use of renewable fuels on the
cost to consumers of transportation fuel and on the
cost to transport goods; and

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(VI) the impact of the use of renewable fuels on other
factors, including job creation, the price and supply of
agricultural commodities, rural economic
development, and food prices.
Id. § 7545(o)(2)(B)(ii)(I-VI).
In determining volumes, EPA may reduce the applicable
volumes by issuing waivers. The statute authorizes two waiver
types: (1) a cellulosic waiver allowing reduction of “the
applicable volume of cellulosic biofuel . . . to the projected
volume available during that calendar year” whenever the
projected volume falls short of the volume in the statutory
table, id. § 7545(o)(7)(D)(i); and (2) a general waiver
permitting the reduction of “the national quantity of renewable
fuel required . . . based on a determination . . . that
implementation of the requirement would severely harm the
economy or environment of a State, a region, or the United
States . . . or [that] there is an inadequate domestic supply,” id.
§ 7545(o)(7)(A).
“EPA must meet two different statutory deadlines when
promulgating volume requirements and percentage standards.”
ACE, 864 F.3d at 716. “First, EPA must promulgate all
renewable fuel percentage standards for a given year by
November 30 of the preceding year.” Id. (citing 42 U.S.C.
§ 7545(o)(3)(B)(i)). “Second, EPA must promulgate the
volume requirements for those years not covered by the
statutory tables ‘no later than 14 months before the first year’
for which such volume requirements will apply.” Id. at 716-17
(citing 42 U.S.C. § 7545(o)(2)(B)(ii)). However, EPA may
issue late volume requirements “with retroactive effect so long
as EPA reasonably mitigates any burdens that its lateness
imposes on obligated parties,” id. at 717, “by considering the
‘benefits and the burdens attendant to its approach’ of issuing

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late renewable fuel requirements,” id. at 718 (quoting Nat’l
Petrochemical & Refiners Ass’n v. EPA, 630 F.3d 145, 166
(D.C. Cir. 2010)).
Congress mandated that EPA determine and publish in the
Federal Register the renewable fuel obligations for the
upcoming calendar year in the form of volume percentages of
transportation fuel sold or imported into the United States. 42
U.S.C. § 7545(o)(2)(B). In essence, if each obligated party
were to include the RFS Program’s percentage requirement of
renewable fuel in the obligated party’s total fuel production,
the volume requirements for the Program would be achieved.
EPA determines the percentage for each of the four renewable
fuel types under the Program by dividing the projected annual
volume of each fuel type by the estimated total of gasoline and
diesel volume that will be used in the upcoming year. 40
C.F.R. § 80.1405(c).
B. The Endangered Species Act
EPA must evaluate the potential impacts of any regulation
stemming from the RFS Program on critical habitats and
entities listed in the ESA. 16 U.S.C. §§ 1531-1544. “Congress
enacted the ESA ‘to provide a means whereby the ecosystems
upon which endangered species and threatened species depend
may be conserved’ . . . ‘to provide a program for the
conservation of such endangered species and threatened
species[]’ . . . [and] to ‘halt and reverse the trend toward species
extinction, whatever the cost.’” Ctr. for Biological Diversity v.
EPA, 861 F.3d 174, 177 (D.C. Cir. 2017) (citations omitted).
Under Section 7 of the ESA, EPA must “insure that any action
authorized, funded, or carried out by [the] agency . . . is not
likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or
adverse modification of habitat of such species.” 16 U.S.C.

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§ 1536(a)(2). To satisfy this requirement, before taking any
proposed action, EPA consults with FWS and the National
Marine Fisheries Service (NMFS) (together, the Services),
which “share responsibilities for administering the [ESA].” 50
C.F.R. § 402.01(b). “This process, called . . .
‘consultation,’ . . . ‘ensur[es] that such action does not go
forward without full consideration of its effects on listed
species.’” Ctr. for Biological Diversity, 861 F.3d at 177-78
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 603 (1992)).
C. The Set Rule
On July 12, 2023, EPA published the Set Rule that, in
relevant part, (1) announced the volume and percentage
standards of cellulosic biofuel, advanced biofuel, total
renewable fuel, and biomass-based diesel for the years 2023,
2024, and 2025; (2) addressed outstanding volume remaining
from a remand of 2016 annual total renewable fuel volume in
ACE; (3) amended RFS regulatory provisions, including
adjusting the conversion factor for biomass-based diesel; and
(4) clarified recordkeeping provisions for renewable fuel
producers and RIN generation for fuel not used in the United
States.
1.
As a starting point, to determine the volumes for the four
categories of renewable fuel encompassed by the RFS
Program, EPA developed “‘candidate volumes’ for each
category.” 88 Fed. Reg. at 44,480. EPA developed these
candidate volumes (meaning preliminary projected volumes)
by analyzing “a subset of the statutory factors that are most
closely related to supply of and demand for renewable fuel”
(supply-and-demand-related factors), namely production and
use of renewable fuels, the expected annual rate of future
commercial production of renewable fuels, and the sufficiency

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of infrastructure to deliver and use renewable fuel. Id. In
developing candidate volumes, EPA also considered the
historical supply of renewable fuel.
To assess the effects of the candidate volumes, EPA
established a baseline of renewable fuel volumes EPA
projected would be produced in a scenario in which the Set
Rule did not exist. EPA then used the candidate volumes to
conduct analyses of the other environmental and economic
factors under the remaining statutory factors not yet
considered. Based on the results of these analyses, EPA
determined the final volume requirements for the four
categories for the years 2023, 2024, and 2025. Below is a table
summarizing the final renewable fuel volume targets (in
billions of RINs) issued by EPA in the Set Rule.
88 Fed. Reg. at 44,470. EPA also conveyed the percentage
standards for the years 2023, 2024, and 2025.

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Id. at 44,471.
2.
In the Set Rule, EPA completed the process of addressing
our remand in ACE of the 2014, 2015, and 2016 annual
volumes. As to those volumes, EPA had originally relied on
the general waiver authority for inadequate domestic supply to
lower the 2016 total renewable fuel volume by 500 million
gallons. See RFS Program: Standards for 2014, 2015, and 2016
and Biomass-Based Diesel Volume for 2017, 80 Fed. Reg.
77,420, 77,433 (Dec. 14, 2015). In ACE, we held that “EPA
exceeded its authority under the ‘inadequate domestic supply’
provision,” “vacate[d] EPA’s decision . . . and remand[ed] . . .
for further consideration.” 864 F.3d at 703. To address the
ACE remand, EPA “impose[d] a 500-million-gallon
supplemental volume requirement for renewable fuel over two
years.” 88 Fed. Reg. at 44,509. EPA “required the first 250-
million-gallon supplement in 2022,” id., which we recently
upheld. See Sinclair Wyo. I, 101 F.4th at 893-96. In the Set
Rule at issue here, EPA mandated compliance with the second
250-million-gallon supplement. 88 Fed. Reg. at 44,509.
3.
Pursuant to its statutory mandate under 16 U.S.C. § 1536,
EPA engaged in informal consultation with the Services
regarding the Set Rule. In the first half of 2023, EPA provided
a Biological Evaluation and supportive documentation as part
of its informal consultation with the Services. In its Biological
Evaluation, “EPA . . . determined that the production of crop-
based feedstocks ha[d] the potential to affect endangered and
threatened species . . . and critical habitat by contributing to
land use changes that could . . . lead to habitat loss or water
quality impairments via runoff from agricultural lands.” EPA
Biological Evaluation at 6 (J.A. 1025). Therefore, as a result

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of the Set Rule, consultation was necessary because species or
habitats could be affected “where crops of corn, soybean, and
canola are currently grown in the U.S. and . . . downstream
areas could be impacted by agricultural runoff and pollution
from such crop areas.” EPA Biological Evaluation at 6 (J.A.
1025). “EPA found that the Set Rule action area overlaps with
a total of 712 unique species: 672 FWS species, 32 NMFS
species, and 8 that are both FWS and NMFS species . . . [a]nd
. . . a total of 810 populations [we]re evaluated in th[e]
Biological Evaluation.” EPA Biological Evaluation at 6 (J.A.
1025). Ultimately, EPA determined “that the Set Rule may
affect, but is not likely to adversely affect . . . any of the 810
populations within the Set Rule action area or their critical
habitat.” EPA Biological Evaluation at 13 (J.A. 1032).
In its Set Rule concurrence letter expressing agreement
with EPA’s determination, the National Marine Fisheries
Service observed that “[t]he applicable standard to find that a
proposed action is not likely to adversely affect ESA-listed
species or designated critical habitat is whether the effects to
listed species and critical habitat are expected to be
discountable, insignificant, or completely beneficial.” NMFS
Concurrence at 9 (J.A. 2050). Based on its analysis of available
information regarding changes in crop production and water
quality, NMFS concurred “with EPA that the effects of [the Set
Rule] may affect, but are not likely to adversely affect the ESA-
listed and proposed species and/or designated and proposed
critical habitats.” NMFS Concurrence at 25 (J.A. 2066).
The Fish and Wildlife Service took a different approach.
In its response to EPA’s request for concurrence, FWS asserted
that, according to the ESA Section 7 Consultation Handbook,
“a ‘may affect’ determination is appropriate when ‘a proposed
action may pose any effects on listed species or critical
habitat.’” FWS Concurrence at 2 (J.A. 2069). However,

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“[b]ecause there [we]re no general environmental changes
identified in the [Biological Evaluation] that would not occur
but for EPA’s action and that are reasonably certain to occur,”
FWS concluded “that the Set Rule will not result in any ‘effects
of the action,’ and a determination of ‘no effect’ [wa]s
appropriate.” FWS Concurrence at 2 (J.A. 2069). Having
concluded that the Set Rule would have no effect, FWS
concurred with “EPA’s finding that the Set Rule is not likely to
adversely affect ESA-listed species or designated critical
habitats.” FWS Concurrence at 9 (J.A. 2076).
4.
In the Set Rule, EPA acknowledged its adoption of
specified regulatory changes to improve the RFS Program.
First, EPA revised the conversion factor used in the calculation
of applicable biomass-based diesel percentage standards from
1.5 to 1.6 to reflect the increasing volume of renewable diesel
in the biomass-based diesel pool. 88 Fed. Reg. at 44,546-47.
Next, EPA addressed RIN generation by revising 40 C.F.R.
§ 80.1426 to specify that “renewable fuel producers and
importers may only generate RINs . . . for qualifying renewable
fuel.” Id. at 44,547. Finally, EPA addressed the generation
and maintenance of records for waste feedstocks by “providing
an option to allow independent auditors to verify records held
by the feedstock aggregator,” id. at 44,548.
D. Petitioners
Various petitioners challenge the Set Rule. Environmental
Petitioners are advocacy organizations. Refiner Petitioners are
(or represent) refiners and retailers of petroleum products
subject to the Set Rule’s volume requirements. “Neste is a
foreign producer of renewable fuel that generates RINs under
the RFS [P]rogram.” Neste Br. 4. SABR is a trade association
of stakeholders in biodiesel, and includes “feedstock growers

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to biodiesel producers, distributors, retailers, and consumers,
as well as infrastructure, products, and services suppliers.”
SABR Br. C-4.
Intervenors also filed briefs. Two of the Refiner
Petitioners—American Petroleum Institute and American Fuel
& Petrochemical Manufacturers—intervened to oppose
SABR’s petition. Several Biofuel Intervenors filed in support
of the Set Rule and in opposition to the petitions for review
filed by the Refiner Petitioners and the Environmental
Petitioners.2
E. Jurisdiction and Standards of Review
This Court has jurisdiction to review EPA’s Set Rule
pursuant to 42 U.S.C. § 7607(b)(1). Because “we apply the
same standard of review under the [CAA] as we do under the
Administrative Procedure Act,” Allied Loc. & Reg’l Mfrs.
Caucus v. EPA, 215 F.3d 61, 68 (D.C. Cir. 2000), we will
uphold EPA’s action unless it is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law . . . .” 42
U.S.C. § 7607(d)(9)(A). Our review is narrow; if an action is
not contrary to law, “agency action simply [must] be
‘reasonable and reasonably explained.’” Cmtys. for a Better
Env’t v. EPA, 748 F.3d 333, 335 (D.C. Cir. 2014) (citation
omitted). EPA is required to “examine the relevant data and
articulate a satisfactory explanation for its action including a
‘rational connection between the facts found and the choice
made.’” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (citation omitted).
2 Coalition for Renewable Natural Gas did not join the other Biofuel
Intervenors in opposing the Environmental Petitioners’ petition for
review.

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An EPA rule is arbitrary and capricious if:
[T]he agency (1) ‘has relied on factors which
Congress has not intended it to consider,’ (2) ‘entirely
failed to consider an important aspect of the problem,’
(3) ‘offered an explanation for its decision that runs
counter to the evidence before the agency,’ or (4) ‘is
so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.’
U.S. Sugar Corp. v. EPA, 830 F.3d 579, 606 (D.C. Cir. 2016)
(quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43). The Court
“owes particular deference to EPA when its rulemakings rest
upon matters of scientific and statistical judgment within [its]
sphere of special competence and statutory jurisdiction.” Id.
(citation omitted). But the Court is “hesitant to rubber-stamp
EPA’s invocation of statistics without some explanation of the
underlying principles or reasons why its formulas would
produce an accurate result.” Id. (citation omitted). Moreover,
if an agency changes positions, it must “display awareness that
it is changing position.” FCC v. Fox Television Stations, Inc.,
556 U.S. 502, 515 (2009) (emphasis in original). Thus, an
agency “may not, for example, depart from a prior policy sub
silentio.” Id.
DISCUSSION
We discuss the challenges in the following order:
Environmental Petitioners, Refiner Petitioners, Neste, and
SABR.
I. Environmental Petitioners
The Environmental Petitioners challenge the volumes
established in the Set Rule as contrary to the CAA and the ESA.

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They claim that EPA’s statutorily mandated analysis of the
effects of the Set Rule on climate change was inadequate, and
that deficient ESA compliance by EPA, the NMFS and the
FWS will harm listed species or critical habitat. We address
the various claims advanced under each statute in turn,
ultimately concluding that EPA’s analysis of the effects of the
Set Rule on climate change under the CAA was arbitrary and
capricious and that, while NMFS adequately complied, FWS’s
concurrence with EPA as to the effects of the Set Rule on
endangered species under the ESA rests on arbitrary and
capricious analysis. We remand to EPA and FWS for further
explanation without vacating the Set Rule’s volumes.
A. Clean Air Act
The Environmental Petitioners challenge the volumes in
the Set Rule under the CAA and the Administrative Procedure
Act (APA). They claim that EPA’s weighing of the statutorily
required factors was arbitrary and capricious, as was its
analysis of the Set Rule’s effects on climate change. Only the
latter challenge succeeds.
1.
The CAA requires EPA to set volumes based on “a review
of the implementation of the [RFS Program]” in prior years and
an analysis of six factors. 42 U.S.C. § 7545(o)(2)(B)(ii).
Those statutory factors are: (1) the impact of the production and
use of renewable fuels on the environment; (2) the impact of
renewable fuels on the United States’ energy security; (3) the
expected annual rate of future commercial production of
renewable fuels; (4) the impact of renewable fuels on the
infrastructure of the United States; (5) the impact of renewable
fuels on the cost to consumers of fuel and on the cost to
transport goods; and (6) the impact of renewable fuels on other
factors, including job creation, the price and supply of

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agricultural commodities, rural economic development, and
food prices. Id. As part of its analysis of those statutorily
required factors, EPA considered the effect of the Set Rule on
environmental justice, which EPA defines as “the fair
treatment and meaningful involvement of all people regardless
of race, color, national origin, or income with respect to the
development, implementation, and enforcement of
environmental laws, regulations, and policies.” 88 Fed. Reg.
at 44,506.
The Environmental Petitioners argue that EPA gave short
shrift to the Set Rule’s harms to the environment, communities
that manifest environmental justice concerns, and consumers.
The Environmental Petitioners acknowledge that EPA
considered those harms but maintain that they are so grave
compared to the potential benefits of the Rule that EPA failed
to justify its decision to “finalize volumes that lead to such an
imbalance in positive to negative impacts.” Env’t Pet. Br. 38.
In their view, the severity of those harms requires vacatur of
the volumes the Set Rule established for crop-based renewable
fuels.
Our dissenting colleague would vacate the volumes for
distinct but related reasons. He contends that EPA has failed
to explain how the costs associated with the program are
justified by countervailing benefits and accordingly has not
fulfilled its duty to select volumes “based on” an analysis of the
six statutory factors. See post at 7-8. On the partial dissent’s
reading, the large discrepancy between the monetized costs and
benefits of the Rule further magnifies EPA’s error and renders
its decision arbitrary and capricious. Id. at 9-10.
We reject those arguments for two reasons. First, EPA did
more than merely acknowledge those harms. It rationally
explained why its balancing of the potential harms and benefits

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associated with the Set Rule supported the volumes it
established. Specifically, EPA used a subset of the factors most
closely related to the supply and demand for renewable fuels to
identify candidate volumes (i.e. preliminary projected
volumes) for the relevant renewable fuel categories. See 88
Fed. Reg. at 44,480. It then analyzed the effect of those
candidate volumes on the other statutorily required
environmental and economic factors to arrive at final volumes.
Id.
EPA’s process for setting cellulosic biofuel volumes
illustrates that process. EPA established its candidate volumes
for cellulosic biofuel based on its analysis of projected growth
in cellulosic biofuel production and constraints on
consumption (e.g., vehicle compatibility). Id. at 44,512; Regul.
Impact Analysis (RIA) at 277-95 (J.A. 1585-1604).
Considering the effects of that volume on the other statutory
factors, EPA found that cellulosic biofuel’s impact on the
environment is broadly positive because it emits significantly
fewer greenhouse gases than fossil fuels and its feedstocks are
largely waste or byproducts that do not require dedicating
farmland acreage to its production. 88 Fed. Reg. at 44,512.
And, because cellulosic biofuel largely uses waste or byproduct
feedstocks, EPA found its impact on several other statutory
factors like the price and supply of agricultural commodities
and food prices to be minimal. Id. But EPA found that
cellulosic biofuel’s impact on transportation fuel costs to
consumers is relatively high—adding as much as 2 cents per
gallon to the price of gasoline and diesel. Id. at 44,513; RIA at
44 (J.A. 1352).
Based on its balancing of all the factors, EPA ultimately
decided to set final volumes for cellulosic biofuel at the
candidate levels it had projected. 88 Fed. Reg. at 44,513. EPA
similarly analyzed each of the other statutory renewable fuel

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categories. By using available data bearing on the statutory
supply-side factors to develop preliminary candidate volumes,
then balancing all the statutory factors before setting final
volumes, EPA fulfilled its statutory obligation for each
category of renewable fuel. Id. at 44,512-18.
Our dissenting colleague takes issue with EPA’s approach
because of its outcome. In his view, that the Set Rule’s final
volumes largely tracked candidate volumes means EPA gave
too much weight to the “subset of statutory factors” that it used
to determine the candidate volumes and merely “report[ed] the
various high economic and environmental costs” the statute
also requires it to analyze. Post at 7. But that is not what EPA
did. As the cellulosic biofuel example demonstrates, EPA
analyzed those economic and environmental considerations,
reasonably found that the benefits outweighed the costs, and so
decided to set the final volumes at candidate volume levels.
See 88 Fed. Reg. at 44,513. And to the extent that implies EPA
gave greater weight to the supply-related factors it used to set
candidate volumes, that choice was well within its
“considerable discretion to weigh and balance the various
factors required by statute.” Sinclair Wyo. I, 101 F.4th at 887
(citation and internal quotation marks omitted).
Second, the Environmental Petitioners’ (and our
dissenting colleague’s) argument that EPA should have set
lower volumes because of the purported imbalance between the
positive and negative impacts of the Set Rule fundamentally
misunderstands the statute. In Sinclair Wyoming I, we
considered an identical challenge brought by refiners to an RFS
Program Rule asserting that the rule would drive up
compliance costs and GHG emissions. The refiners argued
EPA’s failure to reconcile the “vast disparity” between the
monetized costs and monetized benefits of the Rule rendered
the volumes it set arbitrary and capricious. 101 F.4th at 888-

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89. A key reason we rejected that argument was that “the
statute does not state what weight should be accorded to the
relevant factors,” and so “we give EPA considerable discretion
to weigh and balance the various factors required by statute.”
Id. at 887 (citation and internal quotation marks omitted).
The same reasoning applies here: The text of the CAA
does not require EPA to monetize or otherwise quantify all of
the factors it must consider, nor to conduct a cost-benefit
analysis to set volumes. Instead, the Act states that EPA “shall
. . . determine[]” those volumes “based on a review of the
implementation of the program” in past years and “an analysis”
of six other statutory factors. 42 U.S.C. § 7545(o)(2)(B)(ii).
Contrary to our dissenting colleague’s characterization, those
factors are not “categories of cost.” Post at 8. In fact, only one
of those factors—the impact of renewable fuels on the cost to
consumers of transportation fuel and on the cost to transport
goods—explicitly requires EPA to analyze monetary costs. Id.
§ 7545(o)(2)(B)(ii)(V). EPA undertook that analysis,
estimating that the Set Rule would impose significant fuel costs
on consumers between 2023 and 2025. 88 Fed. Reg. at 44,506.
But, as we have previously noted, Congress in the RFS
Program “made a policy choice to accept higher fuel prices” in
exchange for the benefits of energy security and reduced GHG
emissions. Sinclair Wyo. I, 101 F.4th at 889.
Nothing in the Act or precedent supports a freestanding
requirement that EPA balance the quantifiable costs and
benefits of the volumes it sets, let alone that EPA may
implement the RFS Program only insofar as its benefits—
quantified or not—outweigh its costs. Indeed, in National
Association of Home Builders v. EPA, 682 F.3d 1032 (D.C. Cir.
2012), we rejected a similar argument under a kindred
provision of the Toxic Substances Control Act (TSCA). The
Home Builders contended that TSCA imposed a duty on EPA

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to demonstrate that the benefits of a rule promulgated under the
Act outweighed its costs. Id. at 1039. We noted that while the
TSCA requires EPA to “consider,” among other factors, the
“economic consequences” of action taken pursuant to the
statute—it does not require a cost-benefit analysis. Id. EPA
had nonetheless opted to do a cost-benefit analysis, which we
accordingly reviewed and sustained as reasonable. Id. at 1039-
41; see also Nat’l Wildlife Fed’n v. EPA, 286 F.3d 554, 570-71
(D.C. Cir. 2002) (per curiam). And those cases are fully
consistent with the Supreme Court’s decision in Michigan v.
EPA, 576 U.S. 743 (2015). There, the Court held that while
EPA had to “consider cost . . . before deciding whether
regulation is appropriate and necessary,” id. at 759, it did not
need to conduct “a formal cost-benefit analysis” because it was
“up to the Agency to decide . . . how to account for cost.” Id.
Thus, contrary to the Environmental Petitioners’ and the
partial dissent’s assertion, it does not matter that the monetized
benefits of the Rule may be less than its monetized costs. What
matters is whether EPA acted in a reasonable, non-arbitrary
manner in setting volumes based on its review of the prior
implementation of the program and its consideration of the
statutorily required factors. EPA did so. Its decision to set the
challenged volumes was reasonable and reasonably explained.
2.
Separately, the Environmental Petitioners argue that
EPA’s analysis of the effect of the Set Rule on climate change
was arbitrary and capricious. The statute requires EPA to
analyze the “impact of the production and use of renewable
fuels on the environment, including on . . . climate change.” 42
U.S.C. § 7545(o)(2)(B)(ii)(I). The mandatory climate analysis
is “related to, but distinct from” EPA’s duty to ensure that
specific renewable fuels satisfy minimum GHG emission

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reduction targets mandated by the CAA. 88 Fed. Reg. at
44,500-01; see also 42 U.S.C. § 7545(o)(2)(A)(i) (requiring the
various renewable fuels produced from new facilities to
achieve a minimum of 20-60 percent reductions in emissions
compared to baseline). The Environmental Petitioners advance
three reasons why they believe EPA’s analysis was arbitrary
and capricious. On our independent review, we reject two but
conclude that one of them has merit: EPA disregarded the
results of its own literature review without adequate
explanation. We turn first to that meritorious challenge.
a.
The Environmental Petitioners take issue with EPA’s
review of the latest scientific literature estimating the quantity
of GHG emissions attributable to renewable fuels and EPA’s
ensuing analysis of the effects of the Set Rule on climate
change. The review identified a wide range of estimates for
each renewable fuel depending on what assumptions and
analyses each study used. For example, one study yielded what
turned out to be the low-end estimate within the literature that
corn-based ethanol emits 38 grams of carbon dioxide per
megajoule of energy generated (gCO2e/MJ), while another
study yielded a high-end estimate that it emits 116 gCO2e/MJ.
88 Fed. Reg. at 44,501 (Table IV.A–1). In comparison, studies
estimate that petroleum gasoline emits between 84 and 98
gCO2e/MJ.
EPA made inconsistent use of the data it culled from the
literature. It used the high-end and low-end estimate of each
range reflected in the literature to construct worst-case and
best-case scenarios, respectively, for the effects of the Set Rule
on GHG emissions over a thirty-year period relative to a
baseline scenario that assumed the Set Rule did not exist. RIA
at 164-66 (J.A. 1472-74). But for crop-based renewable fuels

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like corn-based ethanol and soybean oil-based biodiesel, EPA
did not use the ranges derived from the literature review. For
only that subset of renewables, EPA turned back to (lower)
figures it drew from a study it had conducted in 2010 to identify
renewable fuels that met the Clean Air Act’s GHG emission
reduction targets. RIA at 161-62 (J.A. 1469-70). The
Environmental Petitioners argue that EPA never reasonably
explained why it used the results of the literature review to
construct its estimates on some of the effects of the Set Rule
but not others.
We agree. EPA has failed to justify its climate conclusions
regarding the GHG emission reductions attributable to the Set
Rule. To be clear, EPA’s use of ranges derived from credible
publications like peer-reviewed journal articles and
government reports to make projections was not, by itself,
objectionable. EPA explained that, because “all [lifecycle
emissions] studies and models have particular strengths and
weaknesses, as well as uncertainties and limitations,” its goal
for the literature review was “to consider the ranges of
published estimates, not to adjudicate which particular studies,
estimates or assumptions are most appropriate.” 88 Fed. Reg.
at 44,500. But EPA’s unexplained decision to generally rely
on those published estimates for every other fuel category and
to disregard them for crop-based renewable fuels in favor of
ranges derived from its dated 2010 study was arbitrary and
capricious.
To begin with, that decision to rely on a nearly 15-year-
old study is inconsistent with EPA’s acknowledgement that the
modeling framework “EPA ha[d] previously relied upon”—
primarily, the results of the 2010 study—to analyze the effects
of renewable fuels on climate change “is old” and newer data
and research is now available. 88 Fed. Reg. at 44,501.

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That decision also was not reasonably explained. EPA
stated that it used the results of the 2010 study because it was
the “only study identified in [the literature review]
that . . . report[s] an annual stream of land use change
emissions.” RIA at 161 (J.A. 1469). Land use change
emissions are those GHG emissions attributable to growing
crops as feedstocks for renewable fuels on land that was
previously not used for that purpose. According to EPA, an
annual stream is important to calculating emission changes
from crop-based biofuels over a thirty-year period because the
initial conversion of land to grow the needed crops leads to
relatively high emissions at the start of the period, when the
land is converted, but lower emissions over the long term once
the conversion is complete. RIA at 129 (J.A. 1437). EPA
contends that the studies in the literature review systematically
overestimate GHG emissions attributable to crop-based
renewable fuels. RIA at 161 (J.A. 1469). According to EPA,
“an annual stream of land use change emissions” over a period
of years is required for accurate estimation of GHG effects, and
“[t]he only study identified in our review that does report an
annual stream of land use change emissions is the analysis for
the 2010 RFS2 rule.” RIA at 161 (J.A. 1469).
There are two problems with EPA’s explanation. First,
EPA’s statement that the 2010 study was the “only” one to
report an annual stream of land use change emissions
contradicts its statement on the same page that “[t]he majority
of the land use change GHG estimates in the literature”—i.e.
not all of them—“do not report an annual stream.” RIA at 161
(J.A. 1469) (emphasis added). EPA clearly implies that some
minority of the studies EPA considered did in fact report annual
streams of emissions associated with land use change.
Second, EPA asserts that it was justified in using the
substantially lower emissions estimates from its 2010 RFS

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study for corn-based ethanol and soybean-based renewable
fuels in lieu of the aggregate range of estimates from its
literature review because the latter systematically
overestimated GHG emissions from land use changes. But that
assertion of systemic skew is contradicted by EPA’s own
figures showing that GHG emissions estimates drawn from the
literature review were effectively identical to those included in
the 2010 study for all crop-based renewable fuel—except corn-
based ethanol. Compare RIA at 161 (J.A. 1469) (charting
ranges based on the literature review), with RIA at 162 (J.A.
1470) (charting virtually identical ranges based on the 2010
RFS2 rule for soybean-based renewable fuels). The 2010
study’s high-end emissions estimate for soybean oil-based
biodiesel was only slightly lower—72 gCO2e/MJ rather than
73—and the high-end estimate for soybean oil-based
renewable diesel remained unchanged when the 2010 study’s
results were used. RIA at 161-62 (J.A. 1469-70). Only for
corn-based ethanol was there a significant difference: In
contrast to the high-end emissions estimate of 116 gCO2e/MJ
for corn-based ethanol from the updated literature review, the
high-end emissions estimate from the 2010 study was only 91
gCO2e/MJ—more than 20 per cent lower. RIA at 161-62 (J.A.
1469-70).
That substantial, unexplained discrepancy is particularly
problematic for EPA because it plays an outsized role in the
program overall. Corn-based ethanol is by volume the largest
category of renewable fuel produced in the United States—and
it drives the largest aggregate portion of GHG emissions
attributable to renewable fuels. If EPA improperly relied on a
lower high-end emission estimate for corn-based ethanol, it
lacks support for its climate conclusion that “on average [corn-
based ethanol] provides some GHG reduction in comparison to
gasoline.” 88 Fed. Reg. at 44,517. And that unsupported

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conclusion potentially skewed EPA’s ultimate assessment of
the various factors and the volumes EPA set.
Accordingly, we hold that EPA failed to articulate a
“rational connection between the facts found and the choice
made” to use the results of the 2010 study, which, absent
further explanation, renders its climate change analysis
arbitrary. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (internal
quotation marks omitted). EPA placed significant weight on
its climate conclusions in establishing the implied conventional
renewable fuel volume requirement. If EPA cannot justify its
use of the results of the 2010 study on remand, it will need to
explain how other, appropriate data affect its climate
conclusions, whether properly supported climate conclusions
change EPA’s assessment of the statutory factors, and whether
its updated analysis justifies the volumes it set.
b.
Second, the Environmental Petitioners fault EPA for not
using the results of the model comparison exercise EPA
conducted to evaluate the Set Rule’s climate change effects.
The model comparison exercise studied five different models
that estimate the effects of crop-based renewable fuel
production and consumption on global GHG emissions by
running hypothetical scenarios involving major increases in
renewable fuel production through the models and comparing
the results. See 88 Fed. Reg. at 44,501-02. Two of those
models estimated that an increase in global demand for
soybean oil-based biodiesel would lead to a net increase in
GHG emissions, while one estimated a decrease. Model
Comparison Exercise Tech. Document at 113 (J.A. 1993). The
Environmental Petitioners argue that because the model
outputs are based on a common set of hypothetical scenarios
about renewable fuel production, the model comparison

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exercise, and not the literature review, is “the best evidence”
concerning the Set Rule’s effect on climate change. Env’t Pet.
Br. 30.
But this argument misunderstands the purpose of the
model comparison exercise. In its Notice of Proposed
Rulemaking, EPA stated that it was conducting the exercise to
better understand the capabilities of various models and to
locate the underlying reasons model estimates differ, not to
produce a “single robust estimate of the [GHG] impacts
associated with the volume requirements.” RFS Program:
Standards for 2023-2025 and Other Changes, 87 Fed. Reg.
80,582, 80,611 (proposed Dec. 30, 2022). And EPA ultimately
decided not to rely on the exercise’s results to inform final
volumes because it wanted to “engage with stakeholders and
receive feedback . . . before deciding how to use any results in
a rulemaking context.” 88 Fed. Reg. at 44,501. That was
because it found that the models had differing underlying
assumptions and degrees of flexibility that produced
fundamentally different analyses, underscoring the need for
further study before EPA could use the models to estimate the
effects of the Set Rule. For current purposes, EPA simply
noted that insights derived from the model comparison exercise
would inform its “future analytical efforts” to assess the effect
of the RFS Program on climate change. Id. Given EPA’s
acknowledgement that its previous approach is outdated, these
new efforts are welcome.
In the meantime, we do not fault EPA for choosing not to
use the results of the model comparison exercise to evaluate the
Rule’s climate effects. We give an “extreme degree of
deference” to the “evaluation of scientific data within [EPA’s]
technical expertise,” Sinclair Wyo. I, 101 F.4th at 883 (internal
quotation marks omitted), including the agency’s assessment
that more research on analytical tools like these climate change

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models is needed before they are more broadly deployed.
Accordingly, we hold that EPA’s decision not to use the results
of the model comparison exercise to evaluate the effects of the
Set Rule on climate change was reasonable and reasonably
explained.
c.
Third, the Environmental Petitioners argue that EPA erred
in not including the “carbon opportunity cost” of renewable
fuel production in its analysis of the effects of the Set Rule on
climate change. Env’t Pet. Br. 31-32. The carbon opportunity
cost of renewable fuel production refers to a calculation of the
difference between the climate benefits of using land to grow
crops for renewable fuel and hypothetical uses of the same land
in other ways potentially more beneficial to the climate. One
of those possible uses would be to let land lie fallow to
regenerate native vegetation, which sequesters carbon dioxide.
The Environmental Petitioners extrapolate from that possibility
that the CAA’s requirement that EPA consider “the impact of
the production and use of renewable fuels on the environment,”
42 U.S.C. § 7545(o)(2)(B)(ii)(I), obligates the agency to
compute how much carbon dioxide the land could sequester if,
rather than producing crops for renewable fuels, it were
allowed to revert to native vegetation. By not incorporating
such a computation into its analysis, the Environmental
Petitioners contend, EPA missed a “significant climate change
impact of land use” related to renewable fuels. Env’t Pet. Br.
32.
That argument centrally relies on the flawed assumption
that, in the absence of the Set Rule, farmers would repurpose
land from growing renewable fuel feedstocks to lying fallow
and regenerating native vegetation. But the Act empowers
EPA to set volumes for renewable fuels that obligated parties

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must meet; it does not authorize the agency to control farmers’
land use decisions. And any assumption that land not used for
renewable fuels will necessarily lie fallow or be devoted to
regenerating native flora is questionable as a factual matter.
Experience shows that land no longer used to grow crops is
often sold for commercial or residential development.
EPA accordingly set aside the only study in the literature
that attempted to incorporate a carbon opportunity cost into its
analysis because it assumed forest regeneration as the
alternative land use. EPA instead assumed, consistent with the
bulk of the empirical literature, that absent the Set Rule land
would be used in a “business as usual” fashion—which is to
say, as it was used before the Set Rule came into effect. RIA
at 138 n.241 (J.A. 1446 n.241). We therefore hold that EPA’s
decision not to adopt the Environmental Petitioners’ preferred
analysis of carbon opportunity cost effects of the Set Rule on
climate change was reasonable and reasonably explained.
* * *
In response to the Environmental Petitioners’ claims, we
hold that EPA’s climate change analysis under the CAA was
arbitrary and capricious for its failure to adequately explain
why it used a nearly 15-year-old study to estimate the effect of
crop-based renewable fuel production on GHG emissions
rather than the updated literature review it had conducted for
expressly that purpose and used to estimate effects of other
types of renewable fuels. We reject the Environmental
Petitioners’ other challenges to the Set Rule under the CAA and
APA.
B. Endangered Species Act
Separately, the Environmental Petitioners challenge the
compliance of EPA, NMFS, and FWS with the ESA and its

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implementing regulations. They argue that each of those
entities acted arbitrarily and capriciously—and in the case of
FWS, contrary to the statute—in determining that the Set Rule
was not likely to adversely affect endangered species or their
critical habitats. We grant the Environmental Petitioners’
petition with respect to FWS, concluding that its concurrence
was arbitrary and capricious. We reject all the other ESA
challenges.
Section 7 of the ESA imposes a duty on federal agencies
to prevent harm to endangered wildlife and flora, reflecting a
“conscious decision by Congress to give endangered species
priority over the ‘primary missions’ of federal agencies.”
Tenn. Valley Auth. v. Hill, 437 U.S. 153, 185 (1978).
Specifically, under Section 7(a)(2), each federal agency “shall
. . . insure that any action . . . is not likely to jeopardize the
continued existence of any endangered species or threatened
species or result in the destruction or adverse modification of
[critical] habitat of such species.” 16 U.S.C. § 1536(a)(2). To
ensure compliance with that statutory mandate, the ESA’s
implementing regulations require each federal agency to
determine whether its proposed action “may affect listed
species or critical habitat.” 50 C.F.R. § 402.14(a). If so, the
agency must engage in formal consultation with NMFS and
FWS (collectively, the Services) as to the potential effects of
its proposed action on the endangered species or their critical
habitats under each Service’s jurisdiction and discuss steps the
agency can take to mitigate harm. Id. § 402.14(g).
After the agency determines that its action “may affect”
endangered species or their critical habitats, the factual record
may nonetheless support a determination that the agency’s
action “is not likely to adversely affect any listed species or
critical habitat.” Id. § 402.14(b)(1). If the agency so determines
and the Services concur with that assessment, formal

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consultation is not required. Id. In ESA parlance, those
sequential determinations are referred to as “may affect” (as
opposed to “no effect”) and “is not likely to adversely affect”
determinations. The criteria for making those determinations
are set forth in two separate sets of regulatory materials.
The Services’ joint Endangered Species Consultation
Handbook (Handbook) establishes the procedures for the
Services’ consultations with federal agencies pursuant to ESA
Section 7. It states that a “may affect” determination is
appropriate when a proposed agency action “may pose any
effects on listed species or designated critical habitat.”
Handbook at xvi (J.A. 2127) (emphasis in original).
Conversely, it states that a “no effect” determination is
appropriate when a proposed agency action will not affect a
listed species or designated critical habitat. Finally, it states
that a determination that the agency action “is not likely to
adversely affect” listed species or critical habitat is appropriate
when effects have been identified, but they “are expected to be
discountable, insignificant, or completely beneficial.”
Handbook at xv (J.A. 2126). An identified but “discountable”
effect is one that is “extremely unlikely to occur.” Id. at xvi
(J.A. 2127). An “insignificant” effect is one that the agency
identified but would not “be able to meaningfully measure,
detect, or evaluate.” Handbook at xvi (J.A. 2127).
Separately, the ESA’s implementing regulations define the
“effect” of an agency action as “all consequences to listed
species or critical habitat that are caused by the proposed
action.” 50 C.F.R. § 402.02(d). That regulation lists two
criteria that together identify when a consequence is caused by
an agency action (and thus counts as an “effect” under the
ESA): A consequence is a cognizable effect of an agency
action when (1) the agency action is the “but for” cause of the

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consequence; and (2) the consequence is “reasonably certain to
occur.” Id.
How to reconcile the apparent tension between the
definition of “effect” in the regulations (reasonably certain
effect of which the federal action is a but-for cause) and the
definition of a “may affect” determination in the Handbook
(the federal action may pose any effect) is not discussed in
either source.
1.
The Environmental Petitioners first argue that EPA’s
determination in its Biological Evaluation that the Set Rule
“may affect” but is “not likely to adversely affect” endangered
species or their critical habitats was arbitrary and capricious for
two reasons. Neither has merit.
In its Biological Evaluation, EPA determined that the Set
Rule may affect endangered species or their critical habitats if
they induce the conversion of critical habitat into farmland to
grow crops (corn, soybeans, and canola) for renewable fuels,
which could also impair water quality by increasing fertilizer
and pesticide runoff into nearby waterways. As part of its
estimation of the magnitude of the Set Rule’s effects, EPA
predicted how many acres of land the Rule would cause to be
newly converted to grow crops for renewable fuels. To make
that prediction, EPA extrapolated from recent studies
evaluating the effect of renewable fuel production on the
conversion of land to farmland. And, to predict where land
conversion was likely to occur, EPA used data-based models
that allocate the anticipated increased cropland acreage across
the United States. By overlaying the predicted locations of
land conversions onto the habitat ranges of endangered species,
EPA generated a list of those endangered species that could be

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35
affected by the Set Rule and estimated how much of their
habitat was at risk of conversion.
The Environmental Petitioners first claim that EPA set the
wrong environmental baseline against which to measure the
effects of the Set Rule on endangered species or their critical
habitats. They argue that, rather than calculating incremental
land conversion as EPA did by comparing the effects of the Set
Rule to a hypothetical circumstance in which the Set Rule did
not go into effect, EPA should have compared the effects of the
Set Rule to a hypothetical circumstance in which the entire RFS
Program, from 2007 onward, never existed. Env’t Pet. Br. 18.
They defend that baseline by pointing out that “EPA had full
statutory discretion to set volumes for corn and soy[beans] at
zero.” Id. In the Environmental Petitioners’ view, using their
preferred baseline would have forced EPA to reckon with the
cumulative environmental effects of all previous rules
promulgated since the RFS Program’s inception for which EPA
did not comply with its ESA obligations.
It is true that EPA has generally failed to comply with its
ESA obligations in previous RFS Program rulemakings. In
American Fuel & Petrochemical Manufacturers v. EPA, for
example, we held that EPA’s failure to make an effects
determination as to the 2018 RFS Rule violated the ESA. 937
F.3d at 597-98. And in Growth Energy v. EPA, 5 F.4th 1 (D.C.
Cir. 2021), we held that EPA’s determination that its 2019 RFS
Rule would have “no effect” on endangered species or their
critical habitats was arbitrary and capricious. Id. at 32.
But the fact that the Set Rule represents EPA’s first full
attempt to comply with its obligations under the ESA does not
mean the agency must here account for the RFS Program’s
cumulative effects on endangered species since the program’s
outset. The Environmental Petitioners identify no authority for

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that proposition, and the ESA’s implementing regulations
foreclose it. The regulations define an “environmental
baseline” as “the condition of the listed species or its
designated critical habitat in the action area, without the
consequences to the listed species or designated critical habitat
caused by the proposed action.” 50 C.F.R. § 402.02(d)
(emphasis added). In this case, the proposed agency action is
the Set Rule establishing volumes for 2023 through 2025. The
environmental baseline includes “the past and present impacts
of all Federal . . . actions.” Id. That definition requires EPA to
include the cumulative impact of previous rules promulgated
under the RFS Program in its environmental baseline.
Accordingly, EPA’s use of a baseline that excludes only the
effects of the Set Rule, and not the full impact of the Program
since its inception, was reasonable and not contrary to law.
The Environmental Petitioners next contend that EPA
failed to analyze any harms to endangered species from
increased water pollution despite listing it as a potential effect
of the Set Rule. EPA acknowledged that cropland expansion
attributable to the Set Rule could result in increased fertilizer
and pesticide runoff into waterways near expected areas of
cropland expansion, leading to problems like hypoxia for
endangered species. But, contrary to the Environmental
Petitioners’ claims, EPA did analyze those harms, ultimately
determining that the effects on endangered species were
discountable (that is, extremely unlikely to occur) or
insignificant (that is, not measurable). EPA based that
determination on extrapolation from a 2021 study published by
Chen et al. (Chen study) that modeled the impact on water
quality from crop expansion in the Missouri River Basin. That
study estimated that crop expansion had led to, at most, an
increase of 0.8% and 2.1% in the amount of nitrogen and
phosphorous, respectively, in that waterway, representing only

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“minor increase[s]” from existing conditions. EPA Biological
Evaluation at 178, 234 (J.A. 1197, 1253).
The Environmental Petitioners critique the Chen study for
not addressing upstream tributaries. But EPA determined that
study was a “reasonable proxy” for the effects of the Set Rule
and that it “provides the best information available” on the
topic; the Environmental Petitioners do not point to any
alternative source in the record, let alone a better one. EPA
Biological Evaluation at 175 (J.A. 1194). Because “what
constitutes the best scientific and commercial data available is
itself a scientific determination,” it “belongs to the agency’s
special expertise and warrants substantial deference.” Nat’l
Fam. Farm Coal. v. EPA, 966 F.3d 893, 925 (9th Cir. 2020)
(citation and internal quotation marks omitted); see also Shafer
& Freeman Lakes Env’t Conservation Corp. v. FERC, 992
F.3d 1071, 1090 (D.C. Cir. 2021) (holding that FWS’s
judgment in selecting a particular method for calculating the
effects of agency action “merits the deference traditionally
given to an agency when reviewing a scientific analysis within
its area of expertise”) (citation and internal quotation marks
omitted).
We thus hold that EPA reasonably considered the effects
of increased water pollution from the Set Rule on endangered
species; its determination that the Set Rule is not likely to
adversely affect endangered species or their critical habitats
was reasonable and reasonably explained.
2.
The Environmental Petitioners also challenge as arbitrary
and capricious the National Marine Fisheries Service’s
concurrence with EPA’s view that the Set Rule is not likely to
adversely affect endangered species or their critical habitats. In
its Biological Evaluation, EPA identified 73 ESA-listed

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species and 57 designated critical habitats under NMFS
jurisdiction that the Set Rule may affect through habitat
conversion and water pollution. Based on the information EPA
provided, NMFS considered two different scenarios in which
harm could come to species under its jurisdiction: when a
species lives (1) near or (2) downstream of a potential crop
conversion area. NMFS determined that the effects of the Set
Rule on species in the first scenario were discountable, and that
in the second scenario they were insignificant. The Service
therefore concurred with EPA that, while the Set Rule may
affect endangered species or critical habitat, it was not likely to
adversely affect them.
The Environmental Petitioners concede that NMFS’s
“discountable” determination was reasonable, but contest
NMFS’s “insignificant” determination as to species or habitat
downstream of potential crop conversion areas. That
determination is arbitrary, they say, because “insignificant”
means that “no harm will occur to even a single individual of
that species, not that impacts appear tiny,” and EPA’s own
Biological Evaluation predicted, for example, hundreds of
additional acres in corn cultivation and thousands more in
soybean cultivation in the Chesapeake Atlantic Sturgeon’s
range. Env’t Pet. Br. 24; EPA Biological Evaluation at 227
(J.A. 1246). But the Handbook defines an “insignificant”
effect as one that a person would not “be able to meaningfully
measure, detect, or evaluate.” Handbook at xvi (J.A. 2127).
So, while the Environmental Petitioners are correct that an
effect cannot be insignificant if it harms an endangered species
or its habitat, the nature and magnitude of the effect matters. A
harm that cannot be meaningfully detected or measured cannot
be attributed to an agency action.
NMFS determined here that the effect of the Set Rule on
overall water pollutant concentrations was extremely minor,

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representing only a slight change from baseline conditions.
NMFS’s research demonstrated that species’ exposure to
pollutants like pesticides can vary by over 10% due to intrinsic
differences in climate and soil conditions and that species’
mortality rates can vary by more than 5% even if the species
are not exposed to additional pollutants. NMFS Concurrence
at 22 (J.A. 2063). In view of those facts, NMFS reasonably
determined that it could not meaningfully measure or detect the
projected effects of the Set Rule on species or habitat
downstream of potential crop conversion areas and that
accordingly, those effects are insignificant. As NMFS put it,
an extremely minor increase in pollutant exposure leads to
minimal increases in exposure and mortality among species,
and those minimally increased levels remain within the routine
variability of “the baseline conditions prior to any crop
conversion.” NMFS Concurrence at 22 (J.A. 2063).
Finally, the Environmental Petitioners argue that, even if
NMFS’s determinations as to the effects of the Set Rule on
endangered species or habitats were reasonable, NMFS erred
by failing to give the “benefit of the doubt” to the species,
contradicting what petitioners claim is its longstanding practice
and policy. Env’t Pet. Br. 26. In support of that claim, they
quote from the Handbook, which instructs: “If the nature of
the effects [of the agency action] cannot be determined, benefit
of the doubt is given to the species. Do not concur in this
instance.” Handbook at 3-12 (J.A. 2134). The problem with
that argument is that EPA did determine the nature of the
effects of the Set Rule: It could lead to habitat conversion and
increased water pollution that might harm endangered species
or their critical habitats. It then further determined,
consistently with the Handbook, that those effects were either
discountable or insignificant. Thus, NMFS did not err by
concurring with EPA on those grounds.

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3.
The Environmental Petitioners also challenge the Fish and
Wildlife Service’s concurrence with EPA as both contrary to
the ESA and arbitrary and capricious. Unlike NMFS, FWS did
not concur with EPA by determining the Set Rule’s effects on
the 685 endangered species and 155 critical habitats under
FWS jurisdiction to be insignificant or discountable. Instead,
FWS made a threshold determination that the Set Rule would
have “no effect” on any endangered species or critical habitat,
and that it follows “[l]ogically” from such determination “that
these species or critical habitats are not likely to be adversely
affected by the action.” FWS Concurrence at 1 & n.2 (J.A.
2068 & n.2).
FWS rested its “no effect” determination on the definition
of the “effect” of an agency action in the ESA implementing
regulations. FWS reasoned that, because EPA could not
identify with geographical certainty where any cropland
conversions triggered by the Set Rule would occur, the Rule
could not be the but-for cause of any such conversions, making
them not “reasonably certain to occur.” 50 C.F.R. § 402.02.
Accordingly, FWS determined that the Set Rule would have
“no effect” on any endangered species or critical habitat under
50 C.F.R. § 402.02 and thus would not likely adversely affect
those species or habitats.
The Environmental Petitioners argue that FWS’s approach
is contrary to the ESA because it relies on the definition of
“effect” in the ESA’s implementing regulations in a way that is
not reflected in—and indeed conflicts with—the relevant
Handbook passage, which FWS and NMFS jointly developed
and have treated as authoritative for more than 50 years. EPA
identified hundreds of species under FWS jurisdiction that it
concluded the Rule “may affect.” In the Environmental

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Petitioners’ view, FWS then failed to use scientific techniques
to assess the potential effects on those species, instead resorting
to a novel, acontextual reading of a regulatory definition that
conflicts with EPA and NMFS’s determinations.
For its part, EPA contends that FWS’s concurrence was a
reasonable application of ESA’s implementing regulations and
is supported by the Handbook because FWS has the final
responsibility, as the concurring service, to determine the
“effects of the action.” EPA Br. 130. And, EPA claims, it is
of no import that NMFS and FWS rested their concurrences on
different rationales because “neither the ESA, its regulations,
nor the Handbook mandate[s] a uniform methodology for
making no-effect/may-effect determinations.” EPA Br. 131-
32.
Faced with those disparate approaches, neither party
provides a cohesive framework for understanding the
relationship between the ESA’s implementing regulations and
the Handbook’s guidance. The Environmental Petitioners
ignore the plain text of 50 C.F.R. § 402.02, which defines the
“effect” of an agency action. If there is no effect of an agency
action because, for example, it is not “reasonably certain” that
a consequence of the action will occur, it is hard to see how an
agency action “may affect” an endangered species or critical
habitat. Handbook at xvi (J.A. 2127). EPA, on the other hand,
ignores the tensions between the Handbook and the ESA’s
implementing regulations. For example, if a consequence must
be “reasonably certain to occur” to constitute an “effect” of an
agency action, 50 C.F.R. § 402.02, how can an action’s effects
ever be identifiable because they “may affect” species, yet be
“discountable,” which the Handbook defines as one that is
“extremely unlikely to occur”? Handbook at xvi (J.A. 2127).
And it is difficult to see how FWS can be right that the Rule
had “no effect” at all if EPA and NMFS correctly determined

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that there were identifiable effects of the Set Rule—albeit
effects that were “insignificant” or “discountable.”
We need not resolve the parties’ conflicting legal positions
because the inadequacy of FWS’s record and reasoning alone
makes clear that FWS’s concurrence was arbitrary and
capricious. Specifically, FWS’s concurrence failed to engage
with EPA’s resolution of the problem of geographical
uncertainty using forecasting models. FWS based its “no
effects” determination chiefly on the lack of geographical
certainty as to where cropland conversions would occur. That
information is inevitably somewhat uncertain because EPA
cannot control where or whether farmers will convert land to
cropland to meet the increased supply for renewable fuels
induced by the Set Rule. But in its Biological Evaluation, EPA
acknowledged the geographical uncertainty and addressed it
using forecasting models to predict the locations where
cropland conversion is most likely to occur. For new acres of
corn and canola, EPA employed a “probabilistic approach” to
select plots projected for conversion from land EPA identified
as the most likely to be converted to cropland based on
historical land use conversions. EPA Biological Evaluation at
133-34, 166 (J.A. 1152-53, 1185). Repeating that process
many times, EPA generated a list of locations most likely to be
converted under the Set Rule to cropland to grow corn and
canola. And for new acres of soybeans, EPA developed a
model that ranked acres of land in the United States by their
suitability for soybean farming based on several factors,
including the land’s ability to grow soybeans, proximity to
existing soybean fields, and historic soybean cultivation rates.
EPA then used that model to predict where conversion of land
to soybean cultivation is most likely to occur.
FWS’s concurrence acknowledged the existence of those
models, yet did not explain why they were flawed or

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inadequate to support an aggregate estimate of the geographical
impact of the Set Rule. FWS simply dismissed their results as
uncertain. But certainty is not required. FWS simply ignored
what were, in EPA’s view, the “best estimates using the
available data” to resolve inherent uncertainty regarding the
geographical effects of the RFS Program. EPA Biological
Evaluation at 231 (J.A. 1250); Exchange Between EPA and
NMFS at 4 (J.A. 1278). Because FWS failed to engage with
the results of those models or, in the alternative, identify why
they did not constitute the best available science and data, it
“entirely failed to consider an important aspect of the
problem.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43.
Accordingly, we hold that FWS’s concurrence with EPA’s
bottom line based on FWS’s determination that the Set Rule
will have “no effect” on endangered species or their critical
habitats was arbitrary and capricious.
* * *
In sum, we grant the petition as to two of the
Environmental Petitioners’ challenges: The CAA challenge to
EPA’s climate change analysis and the ESA challenge to
FWS’s concurrence with EPA’s Biological Evaluation. As to
those two challenges, the Environmental Petitioners are correct
that EPA and FWS, respectively, failed to adequately explain
the basis for their decisions. We deny the petition in all other
respects.
C. Remedy
With respect to remedy, the ordinary response to a
violation is to vacate the unlawful agency action. See 5 U.S.C.
§ 706(2). And the Environmental Petitioners request vacatur
of the Set Rule’s volumes of corn-based ethanol and soybean
oil-based renewable fuels. But in some cases, instead of
vacating the action we remand for the agency to correct its

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errors. See Allied-Signal, Inc. v. U.S. Nuclear Regul. Comm’n,
988 F.2d 146, 150-51 (D.C. Cir. 1993). The appropriateness of
the remand-without-vacatur remedy turns on two factors: “(1)
the seriousness of the deficiencies of the action, that is, how
likely it is the agency will be able to justify its decision on
remand; and (2) the disruptive consequences of vacatur.”
United Steel v. Mine Safety & Health Admin., 925 F.3d 1279,
1287 (D.C. Cir. 2019) (citation and internal quotation marks
omitted).
Here, both factors support remanding without vacatur to
give the agencies an opportunity to correct their errors. As for
the likelihood of justifying their decisions on remand, EPA and
FWS each erred by inadequately explaining the connection
between the result it reached and the record underlying its
decision. The CAA provides EPA with significant discretion
as to how it structures its analysis of the effect of the Set Rule
on climate change. The agency may well be able to justify its
chosen volumes so long as it adequately explains why the older
2010 study, rather than the updated literature review, remains
the best source of data for estimating crop-based renewable
fuels’ long-term effects on GHG emissions. Similarly, FWS
may be able to better explain its reasoning for concurring with
EPA’s determination that the Set Rule is not likely to adversely
affect endangered species or their critical habitats. Both FWS
and NMFS received the same set of data and analyses from
EPA, and NMFS was able to adequately explain its decision.
Moreover, vacatur would be highly disruptive to all
stakeholders in the RFS Program as the compliance deadlines
for 2023 and 2024 have already passed.
Accordingly, we remand to EPA and FWS without
vacating the Set Rule’s volumes for further explanation of their
decisions.

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II. Refiner Petitioners
The Refiner Petitioners challenge several aspects of the
volumes established in the Set Rule. First, they claim EPA’s
2023 and 2024 volume requirements were impermissibly late
and the 2023 Supplemental Standard was not authorized by
statute. Second, they assail the process EPA used to set all the
volumes as contrary to the CAA or alternatively, arbitrary and
capricious. Third, they attack the volumes established in the
Set Rule for specific categories of renewable fuels. Fourth,
they dispute EPA’s reliance on the economic theory that the
cost to obligated parties of complying with the Set Rule’s
volume mandates is passed through to consumers, also known
as the “RIN-passthrough theory.” We address each of those
challenges in turn, concluding they either lack merit or were
not properly preserved.
A. Late and Supplemental Standards
We begin with legal claims that the 2023 and 2024 volume
requirements were impermissibly late and that the 2023
Supplemental Standard was not authorized by statute. As
explained below, our precedent forecloses both contentions.
1.
Refiner Petitioners ask us to set aside the 2023 and 2024
volume requirements because EPA missed the statutory
deadlines for promulgating them. In years without a statutory
volume requirement, the CAA requires EPA to promulgate
volume requirements “no later than 14 months before the first
year for which such applicable volume will apply.” 42 U.S.C.
§ 7545(o)(2)(B)(ii). That means EPA was required to
promulgate 2023 requirements by the end of October 2021 and
2024 requirements by the end of October 2022. But EPA did
not promulgate volume requirements for either year until July

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2023. See 88 Fed. Reg. at 44,468. Requirements for both years
thus were tardy, and the 2023 requirements, promulgated
midway through that compliance year, also were partially
retroactive. Refiner Petitioners contend that we should
therefore vacate the requirements for both years and instruct
EPA to set new requirements no higher than the 2022
requirements. We disagree.
We repeatedly have held that EPA may promulgate late,
and even retroactive, volume requirements so long as it
“reasonably considers and mitigates any hardship caused to
obligated parties by reason of the lateness.” Sinclair Wyo. I,
101 F.4th at 887 (citation omitted). For example, in National
Petrochemical & Refiners Association v. EPA, 630 F.3d 145
(D.C. Cir. 2010), we rejected a challenge to late and partially
retroactive volume requirements because EPA reasonably
considered whether obligated parties had adequate lead time
and access to a sufficient number of RINs to comply with the
delayed requirements. See id. at 165; see also Sinclair Wyo. I,
101 F.4th at 887 (applying National Petrochemical); Monroe
Energy, LLC v. EPA, 750 F.3d 909, 920 (D.C. Cir. 2014)
(same).
EPA reasonably considered the requisite factors here. It
explained that the market would produce enough renewable
fuel to enable obligated parties to satisfy the requirements. See
88 Fed. Reg. at 44,478. It also explained that obligated parties
would have at least nine months to bring themselves into
compliance with the 2023 requirements, and at least 22 months
to bring themselves into compliance with the 2024
requirements. Id. at 44,479. And EPA noted that any
remaining hardship would be minimal because, if an obligated
party could not acquire sufficient RINs within those times, it
could still achieve compliance by using carryover RINs or
carrying forward RIN deficits. Id.

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Refiner Petitioners make two objections. First, they
contend that our precedents approving late volume
requirements are inapposite because they involved
requirements derived from statutory volume tables whereas the
volumes here were set by rule. ACE squarely forecloses that
argument. There, we held that the principles established in
National Petrochemical and Monroe Energy govern regardless
of whether the tardy volume requirements were derived from
the statutory tables or imposed in the first instance by EPA. See
864 F.3d at 721. Second, Refiner Petitioners contend that EPA
did not give enough lead time for the renewable-fuel industry
to increase production in response to the higher volume
requirements. In other words, the industry is unlikely to
produce enough fuel to enable obligated parties to achieve
compliance. But EPA set volume requirements within the
range that it found the renewable-fuel industry could produce.
Moreover, when EPA promulgated the requirements, it noted
that “RIN generation data from the first quarter of 2023
suggest[ed] the market [was] on track to supply the volumes [it
was] finalizing for 2023.” 88 Fed. Reg. at 44,478. In light of
that factual finding—which Refiner Petitioners do not
contest—EPA reasonably concluded that the RIN supply
would be adequate.
2.
Refiner Petitioners also challenge the 250-million-gallon
2023 Supplemental Standard. EPA imposed that standard in
response to ACE, which vacated EPA’s decision to reduce the
2016 statutory renewable-fuel requirement by 500 million
gallons. See ACE, 864 F.3d at 713. To remedy the underlying
legal error, EPA added 250 million gallons to both the 2022
and 2023 volume requirements. See Sinclair Wyo. I, 101 F.4th
at 893. We upheld the 2022 Supplemental Standard in Sinclair
Wyoming I as a valid exercise of EPA’s authority under 42

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U.S.C. § 7545(o)(3)(B)(i) to “ensure” that applicable volumes
are “met.” See id. at 893-96. Because Refiner Petitioners
identify no meaningful difference between the 2022 and 2023
Supplemental Standards, we are bound to reject this challenge.
B. All Volumes
The Refiner Petitioners argue that the process EPA used to
set all volumes in the Set Rule was contrary to the statute and
arbitrary and capricious for two reasons. First, they claim EPA
exceeded the bounds of the CAA by relying on a policy of
continuously increasing volumes that Congress did not intend
it to consider. Second, like the Environmental Petitioners, they
contend that EPA’s weighing of the statutory factors was
arbitrary and capricious—with the Refiner Petitioners arguing
that the monetized costs of the Set Rule are unjustifiably
greater than its monetized benefits. Neither claim succeeds.
1.
The Refiner Petitioners argue that EPA “prioritized its
own policy over Congress’s text,” relying on an “extra-
statutory . . . policy of ever-increasing volumes of renewable
fuel” that misreads Congress’s intent. Refiner Pet. Br. 12-13,
14-15. For support, the Refiner Petitioners point to the
statutory mandate that EPA set volumes based on “a review of
the implementation of the [RFS Program]” in prior years
together with its analysis of the six factors Congress specified.
42 U.S.C. § 7545(o)(2)(B)(ii). The Refiners stress that,
because some of those factors may weigh against higher
renewable fuel volumes, the volumes that EPA set can only be
explained as the result of a tacit EPA policy of ever-increasing
volumes.
The Refiner Petitioners also point to three fuel-specific
statutory guardrails as indicia that Congress did not intend EPA

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to require ever-greater renewable fuel volumes: Congress set
a floor for biomass-based diesel volumes at one billion gallons
but gave no “direction that biomass-based diesel should
increase aspirationally year-over-year.” Refiner Pet. Br. 14. It
required advanced biofuel to make up at least as high a
percentage of total renewable fuel as it did in 2022, thereby
effectively limiting the implied conventional renewable fuel
volume by linking it to the volume of less readily available
advanced biofuel. And Congress required EPA to set the
cellulosic biofuel volume at a level that would not require it to
issue a waiver reducing those volumes in the future, thereby
limiting the volumes to what is reliably attainable. See id. at
13-14 (citing 42 U.S.C. § 7545(o)(2)(B)(iii)-(v)). The
implication of those guardrails, according to the Refiner
Petitioners, is that EPA should have set lower volumes for
renewable fuels.
Refiner Petitioners catalog statutory indicia that Congress
did not intend EPA to employ a policy of setting ever-
increasing RFS volumes, but they fail to establish that EPA
used any such policy in setting the volumes that it did. They
do not, for example, contend that EPA exceeded any of the
guardrails they identify. The bare fact that the volumes
established in the Set Rule increase each year from 2023 to
2025 does not show that EPA followed a tacit policy of
continuous expansion contrary to the statute as written.
Refiner Petitioners also point to EPA’s statement in the
Final Rule that “[t]he volumes that [it] is finalizing continue to
support ongoing growth in renewable fuels, recognizing their
benefits, and based on EPA’s consideration of the multiple
factors identified in the statute.” 88 Fed. Reg. at 44,473. This,
they suggest, shows EPA’s impermissible adherence to an
extra-statutory goal to increase volumes each year from 2023
to 2025. But nothing about that statement suggests action

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inconsistent with the terms of the statute as Refiner Petitioners
themselves read it. We therefore reject the Refiner Petitioners’
contention that EPA violated the Act by relying on any extra-
statutory factor of ever-increasing growth of the requisite
volumes of renewable fuels.
2.
Like the Environmental Petitioners, the Refiner Petitioners
also argue that EPA’s weighing of the statutory factors was
arbitrary and capricious because it failed to account for the
large disparity between the benefits and costs of the Set Rule.
Specifically, they point to the Rule’s monetized cost in
increased fuel prices, which was estimated at $23.8 billion
from 2023 to 2025, while the monetized benefit of improved
energy security was estimated at $513 million. By not
addressing that disparity when it set the challenged volumes,
they argue, EPA failed to consider an important aspect of the
problem, rendering its volumes arbitrary and capricious.
But the Refiner Petitioners’ argument fails for the same
reason as the Environmental Petitioners’. As explained in
Section I.A.1, the CAA does not require EPA to conduct a cost-
benefit analysis to set volumes. And nothing in our precedent
supports a freestanding requirement that, in setting volumes,
EPA must balance the quantified costs and benefits of each
volume it sets, let alone that the quantified benefits of the
volume must outweigh the quantified costs. Instead, the statute
affords EPA discretion in assessing the statutory factors. EPA
explained how it weighed the statutory factors in setting the
volumes it did, and its decision to set those volumes was not
arbitrary and capricious simply because the estimated
quantified costs of the Rule were greater than the quantified
benefits. We therefore deny the Refiner Petitioners’ various

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challenges to the process EPA used to set all volumes in the Set
Rule.
C. Conventional Renewable Fuels
Next up is Refiner Petitioners’ contention that EPA
arbitrarily set unattainable implied volume requirements for
conventional renewable fuel, as primarily met by corn ethanol.
EPA set those volumes at 15 billion gallons per year even
though its candidate volume projections ranged from about
13.8 billion to 14 billion gallons per year. See 88 Fed. Reg. at
44,517. In doing so, EPA recognized that ethanol production
was unlikely to reach 15 billion gallons in any year through
2025. Id. But it noted that “[t]he implied volume requirement
for conventional renewable fuel can also be satisfied by non-
ethanol advanced biofuel, such as conventional biodiesel and
renewable diesel or advanced biodiesel and renewable diesel
beyond what is required by the advanced biofuel volume
requirement.” Id. And it reduced the non-cellulosic advanced
biofuel requirement by an amount sufficient to offset the
projected ethanol shortfall. See id. at 44,516. In sum, EPA
shifted slightly more than one billion gallons per year from the
implied non-cellulosic advanced biofuel volume to the implied
conventional volume.
EPA made this decision in an effort to incentivize a push
beyond the E10 blendwall. See id. at 44,517. By shifting
volumes from the advanced biofuel requirement to the
conventional requirement, EPA permitted obligated parties to
satisfy that volume with either type of fuel. In doing so, EPA
promised rewards for market actors who find ways to enable
increased ethanol consumption—for example, by producing
more motor vehicles that can use fuel with higher
concentrations of ethanol. But EPA declined to mandate
increased ethanol consumption, which would have strained

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obligated parties’ ability to comply with their RFS obligations.
These choices were reasonable and reasonably explained.
Refiner Petitioners primarily object that EPA’s shifting of
volumes will increase RIN prices for ethanol. Perhaps so. But
the shift also reduced advanced biofuel volumes by
corresponding amounts, so one might expect an offsetting
decrease in RIN prices for that category. According to Refiner
Petitioners, the offsetting reduction merely indicates that EPA
arbitrarily set the advanced biofuel requirement too low. That
objection is difficult to understand, for the shift allows Refiner
Petitioners more compliance flexibility: If increased ethanol
consumption proves impossible, Refiner Petitioners may
achieve compliance by acquiring more RINs for advanced
biofuel, which also count toward the total renewable fuel
requirement, as would have been required absent the volume
shift away from that category. And in any event, if the volume
shift does engender an increase in ethanol RIN prices, that is
not problematic standing alone. As we have explained,
“increases in RIN prices are a completely understandable
effect” of any regulatory “pressure to expand renewable
volumes.” Alon Refin., 936 F.3d at 652.
Refiner Petitioners’ other objections fare no better. They
contend that EPA lacks statutory authority to tailor volume
requirements in order to incentivize ethanol use. But ethanol
is a kind of renewable fuel that the CAA seeks to incentivize,
and EPA justified its decision by reference to the factors that
the statute requires it to consider. See 88 Fed. Reg. at 44,517.
Further, Refiner Petitioners suggest that EPA’s decision will
not impact the overall consumption of renewable fuel. That is
true but irrelevant. As detailed above, EPA reasonably
explained its decision to shift volume from a narrower category
to a broader one.

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D. Cellulosic Biofuels
Refiner Petitioners also challenge the cellulosic biofuel
volume requirements, which were keyed to the amount of that
fuel EPA thought would be produced in the relevant years. See
id. at 44,482-83. In the notice of proposed rulemaking, EPA
projected a 13.1 percent annual growth rate in the production
of cellulosic biofuel over 2022 levels. See id. at 44,482. In the
Final Rule, it revised that rate upward to 25 percent. See id.
Refiner Petitioners object that this projected growth rate
was arbitrarily high. That is wrong. EPA based its initial
projection on increased production in 2021 and 2022. After
receiving comments, EPA concluded that the COVID
pandemic had temporarily depressed growth over that time, so
EPA expanded its sample size to consider production growth
rates from 2015 through 2022. EPA reasoned that doing so
would mitigate the effect of COVID-related distortions and so
would more accurately reflect projected growth in the
cellulosic biofuel industry through 2025. See id. at 44,483.
Refiner Petitioners object that growth rates in the production of
cellulosic biofuel were trending downward before the onset of
COVID. See Response to Comments (RTC) at 30 (J.A. 1789).
Nonetheless, it appears that year-over-year growth remained
around 25 percent in April 2020, and EPA reasonably
concluded that the pandemic brought additional headwinds.
Under these circumstances, EPA reasonably based its projected
growth rate on increases observed over a longer period.
E. RIN Cost-Passthrough Theory
Refiner Petitioners object to EPA’s invocation of the “RIN
cost-passthrough theory,” which assumes that “obligated
parties pass through their RIN costs to consumers and that fuel
blenders reflect the RIN value of the renewable fuels in the
price of the blended fuels they sell.” See 88 Fed. Reg. at

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54
44,505. As Refiner Petitioners note, we have recognized that
this theory does not always hold true, and hardship exemptions
might be required in instances where it does not. See Sinclair
Wyo. Refin. Co. v. EPA (Sinclair Wyo. II), 114 F.4th 693, 712-
14 (D.C. Cir. 2024). Yet we have also acknowledged that its
central premise—refineries are able to pass RIN costs along to
consumers—is generally true. See id. at 714 (RIN costs
“generally are passed through from [obligated parties] to their
customers” (emphasis in original) (citing Alon Refin., 936 F.3d
at 649)). Here, EPA reasonably invoked that generally true
premise in setting generally applicable volume requirements.
EPA also invoked the RIN cost-passthrough theory in
considering its obligations under the Regulatory Flexibility Act
(RFA). That statute generally requires agencies to prepare a
regulatory flexibility analysis for any rule subject to notice-
and-comment rulemaking procedures. See 5 U.S.C. § 604(a).
An agency need not do so, however, if it certifies that the rule
will not have a significant economic impact on a substantial
number of small entities. See id. § 605(b). EPA made such a
certification based on a determination that small refineries
would pass on their RIN costs to consumers. See 88 Fed. Reg.
at 44,552. Refiner Petitioners contend this was arbitrary
because, even if obligated parties generally pass RIN costs
along to consumers, small refineries often may be unable to do
so. Refiner Petitioners again invoke Sinclair Wyoming II,
which held that EPA had arbitrarily relied on the passthrough
theory to deny hardship exemptions to two small refineries.
See 114 F.4th at 714. In particular, we criticized EPA for
applying the theory without showing that every small refiner
could immediately pass on RIN costs to its customers. See id.
That argument was not preserved before EPA in the
rulemaking at issue here. The CAA generally forecloses
judicial review of objections that were not “raised with

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reasonable specificity during the period for public comment,”
42 U.S.C. § 7607(d)(7)(B), and no commenter raised the RFA
during that period. The Refiner Petitioners respond that they
did raise the factual predicate for their RFA claim—namely that
obligated parties do not in fact pass all of their RIN costs onto
consumers. But they did so only in the context of a challenge
to the volume requirements themselves. And as we have
explained, assessing whether the general rule was arbitrary
may be a far different inquiry from assessing an RFA claim,
which is keyed to the specific impact of the rule on small
businesses. Because no party put EPA “on notice” of an RFA
challenge, the CAA now bars that claim. Appalachian Power
Co. v. EPA, 135 F.3d 791, 818 (D.C. Cir. 1998).
* * *
We therefore deny the Refiner Petitioners’ petition in all
respects.
III. Neste
Neste challenges the Set Rule’s recordkeeping and RIN
generation provisions, arguing that they are arbitrary and
capricious. According to Neste, the recordkeeping provisions
improperly impose new location, amount, and certification
requirements on renewable fuel producers. In Neste’s view,
EPA neither adequately justified these changes nor reasonably
responded to objections. Separately, Neste asserts that EPA
failed to justify revisions to its RIN generation requirements.
We address each challenge in turn.
A. Recordkeeping Provisions
Neste is a foreign producer of renewable fuel that
generates RINs under the RFS program. Section 211 of the

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CAA mandates that qualifying renewable fuel must be
produced from renewable biomass. See 42 U.S.C.
§ 7545(o)(1)(J). To ensure compliance, RFS regulations
require that “any RIN-generating foreign producer of a
renewable fuel . . . must keep records of feedstock purchases
and transfers associated with renewable fuel for which RINs
are generated, sufficient to verify that feedstocks used are
renewable biomass.” 40 C.F.R. § 80.1454(c).
Certain feedstocks, such as separated food waste, are
subject to additional requirements to confirm compliance. Id.
§ 80.1454(j). Producers must maintain documents
demonstrating the “amounts, by weight, purchased” from
separated waste sources, id. § 80.1454(j)(1)(i), and the
“location of any establishment(s) from which the waste stream
consisting solely of . . . separated food waste . . . is collected,”
id. § 80.1454(j)(1)(ii). Initially, producers were required to
submit a plan at registration documenting feedstock types,
collection methods, verification measures, and, where
applicable, how the cellulosic and non-cellulosic portions of
waste would be quantified. See id. § 80.1450(b)(1)(vii)(B)
(cleaned up).
Because producers were required to update their
information each time their feedstock suppliers changed, in
2016, EPA proposed removing the registration requirement
while maintaining the requirement that producers comply with
general recordkeeping obligations under 40 C.F.R. § 80.1454.
See Renewables Enhancement and Growth Support Rule, 81
Fed. Reg 80,828, 80,902-03 (Nov. 16, 2016). Producers still
“must have documents from their feedstock supplier certifying
that the feedstock qualifies as renewable biomass, describing
the feedstock and identifying the process that was used to
generate the feedstock.” 40 C.F.R. § 80.1454(c)(1)(iii). In
2020, EPA finalized the removal of the registration

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requirement and promulgated a provision at 40 C.F.R.
§ 80.1454(j)(1)(ii) to emphasize that the general requirement
remained. See RFS Program: Standards for 2020 and Biomass-
Based Diesel Volume for 2021 and Other Changes, 85 Fed.
Reg. 7,016, 7,062 & n.230 (Feb. 6, 2020).
EPA’s 2020 rule clarified that the term “location” in
subsection (j) refers to “the physical address that the aggregator
obtained the waste used as feedstocks from, not the physical or
company address of the aggregator.” See id. at 7,062
(clarifying the meaning of “location” in recognition that “many
renewable fuel producers receive wastes used as feedstocks
from an aggregator”). The Set Rule maintained those
recordkeeping requirements without modification. See 88 Fed.
Reg. at 44,547-48. EPA further clarified that self-declarations
are not permitted under subsections 80.1454(d) and (j) due to
the difficulty of auditing records that often originate from
parties outside EPA’s direct regulation, including those that
originate outside the United States. See RTC at 367 (J.A.
1904). To allay producer concerns about requesting
confidential business information from aggregators, EPA
added a compliance option based on independent auditors’
verification of records held by the feedstock aggregator. See
88 Fed. Reg. at 44,548.
1.
We deny Neste’s challenge as to the Set Rule’s location-
recordkeeping requirement because that provision comports
with RFS regulations without capricious deviation. Neste
argues that the requirement imposes a new burden inconsistent
with prior guidance. In its view, prior to the Set Rule,
producers were permitted to comply by reporting the physical
address of an aggregator rather than of the original source.
Neste points to EPA’s 2015 guidance, which it insists allowed

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producers to rely on aggregator addresses and regional
information, as evidence of a significant policy shift. RFS
Registration Presentation at 3-4 (J.A. 2153-54). But this
argument overlooks the plain language of the regulation, the
statutory framework, and the broader purpose of the RFS
Program.
EPA reasonably justifies requiring records that ensure
feedstock can be traced back to its origins, rather than only to
aggregators that receive feedstock from those original sources.
First, the statute requires documentation of “the location of any
establishment(s) from which the waste stream consisting solely
of separated yard waste, separated food waste, or biogenic
waste oils/fats/greases is collected,” expressly focusing on
recording the place where the feedstock originated. The point
of the recordkeeping is to ensure traceability to confirm that
feedstocks meet the statutory definition of renewable biomass.
40 C.F.R. § 80.1454(j)(1)(ii). Tellingly, the 2020 clarification
frames “location” as the source from which “the aggregator
obtained the waste used as feedstocks,” distinguishing it from
“the physical or company address of the aggregator.” 85 Fed.
Reg. at 7,062 (emphasis added). That reading of the regulation
is further reinforced by a related provision, which requires all
domestic producers to “keep documents . . . that identify where
the feedstocks were produced and are sufficient to verify that
feedstocks used are renewable biomass.” 40 C.F.R.
§ 80.1454(d)(1).
Second, Neste fails to account for the regulatory history.
Recordkeeping provisions have consistently required
producers to document the origin of feedstocks. Compare 40
C.F.R. § 80.1454(c)(1), (d)(1) with (j)(1)(ii). The 2015
guidance Neste cites concerns only the RFS Program’s now-
revoked registration requirements and has no bearing on the
recordkeeping obligations that remain in place. The 2015

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guidance does not transform the Set Rule’s discussion of the
requirement to record source location into a new or
unexplained deviation from the existing recordkeeping
framework. See El Puente v. U.S. Army Corps of Eng’rs, 100
F.4th 236, 256 (D.C. Cir. 2024). To the contrary, there is no
deviation. Neste has not pointed to any pre-2020 EPA rule or
guidance that interprets the relevant recordkeeping provisions
in a way that diverges from EPA’s current understanding.
Finally, the purpose of the location recordkeeping
requirement further underscores its validity. Accurate
documentation of original source locations ensures that
feedstocks qualify as renewable biomass. 40 C.F.R. §
80.1454(c)(1). Traceability prevents fraud, enhances
accountability, and ensures renewable fuel achieves its
intended environmental benefits. RTC at 365 (J.A. 1902). By
requiring source documentation and prohibiting self-
declarations, the Set Rule strengthens compliance, deters fraud,
and promotes transparency. EPA reasonably explained that “it
is not possible to verify self-declarations without additional
documentation.” RTC at 367 (J.A. 1904). These measures
implement Congress’s directive to prevent fraudulent RIN
generation and ensure that renewable fuel meets rigorous
environmental standards. See RTC at 365 (J.A. 1902).
2.
We also deny Neste’s challenges to the Set Rule’s
requirement to document waste amounts. Neste argues that the
Set Rule’s amount-recordkeeping provision imposes new
burdens by requiring detailed tracking of amounts at individual
sources. In its view, EPA’s prior practices and guidance
permitted producers to rely on aggregate amount data rather
than records for each specific source. Neste contends that the
Set Rule effects a significant policy shift and imposes

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impractical obligations on renewable fuel producers. These
arguments are unpersuasive.
First, the unchallenged regulatory text plainly requires
documentation of the “amounts, by weight, purchased” from
waste sources. 40 C.F.R. § 80.1454(j)(1)(i). And such
specificity is critical to verifying that the feedstocks qualify as
renewable biomass. As EPA explained in its Response to
Comments, the requirement ensures transparency and prevents
the generation of fraudulent RINs. See RTC at 365 (J.A. 1902).
EPA did not make substantive changes to the amount
requirement in the Set Rule; Neste offers no evidence that EPA
has ever interpreted this regulation differently than it does now.
Its assertion that EPA has shifted policy is therefore
unsubstantiated. See El Puente, 100 F.4th at 256.
Second, EPA provided a reasonable explanation for
maintaining the amount-recordkeeping requirement. EPA
clarified that, while the now-revoked registration provision
only required enough information for EPA to determine it was
possible for producers to obtain qualifying feedstocks, more
detail is required if the recordkeeping requirements are to
provide means to verify that the quantities of feedstocks used
to produce renewable fuel are, in fact, in compliance with the
statute. See RTC at 374-75 (J.A. 1911-12). While Neste
argues that requiring records of feedstock amounts from each
original source significantly burdens producers that rely on
confidential information from aggregators to supply separated
waste, Neste Comment at 12 (J.A. 552), any such burden is
mitigated by the alternative recordkeeping pathway. See
generally 40 C.F.R. § 80.1479; 88 Fed. Reg. at 44,548.
Under that alternative compliance option, aggregators can
maintain detailed amount records on behalf of producers,
alleviating concerns about operational inefficiencies or the

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confidentiality of aggregators’ sources. 40 C.F.R.
§ 80.1479(e); see Spirit Airlines, Inc. v. Dep’t of Transp., 997
F.3d 1247, 1255 (D.C. Cir. 2021) (citing Chamber of Com. v.
SEC, 412 F.3d 133, 145 (D.C. Cir. 2005) (“Where a party raises
facially reasonable alternatives, the agency must either
consider those alternatives or give some reason for declining to
do so.”) (cleaned up)). EPA reasonably considered industry
feedback in developing this pathway, which balances
compliance oversight with practical flexibility. See RTC at
359-78 (J.A. 1896-1915); see also Fox Television Stations, 556
U.S. at 515; Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43.
Accordingly, we reject Neste’s challenges to the amount
requirement.
3.
Neste also claims that the Set Rule arbitrarily eliminated
the use of self-certification by aggregators. We conclude that
EPA never issued authoritative guidance suggesting that
aggregators could satisfy all RFS recordkeeping requirements
merely with self-certification. To comply with the
recordkeeping requirements, RIN-generating foreign
renewable fuel producers and importers must secure
certification from originating feedstock suppliers verifying that
their feedstocks qualify as renewable biomass. Such
certification has always been required of importers and foreign
producers that generate RINs. See 40 C.F.R
§ 80.1454(c)(1)(iii). They must also “keep records of
feedstock purchases and transfers . . . sufficient to verify that
feedstocks used are renewable biomass.” Id. § 80.1454(c)(1).
In the Set Rule, EPA merely reaffirmed that aggregators’
self-certifications cannot meet these requirements because they
lack independent verifiability. In this regard, RFS regulations
have always stated that regulated entities must provide “such

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other records as may be requested by EPA.” 40 C.F.R.
80.1454(j)(1)(iii); see EPA Br. 98. EPA identified significant
fraud risks that may lead to an increase in misrepresented
feedstock compliance. RTC at 370 (J.A. 1907). Because
aggregators may assume recordkeeping responsibilities,
provided they register and submit to EPA oversight under
Section 80.1479, EPA’s approach reasonably balances the RFS
program’s integrity with flexibility for industry participants.
We therefore reject Neste’s challenge to the certification
requirement.
B. RIN Generation Provision
We further deny Neste’s challenges to the Set Rule’s
restriction on generating RINs for fuel not ultimately used in
the United States. Neste contends that this restriction
constitutes an arbitrary and capricious policy shift and imposes
retroactive burdens on producers. We are unpersuaded.
In the Set Rule, EPA reinforced that: (1) RINs may not be
generated for renewable fuel that is not produced for use in the
United States, 40 C.F.R. § 80.1426(c)(2); and (2) RINs
corresponding to fuel that is not sold in the United States are
invalid, id. § 80.1431(a)(1)(viii). See 88 Fed. Reg. at 44,582.
Neste argues that those two provisions are at odds with one
another and represent an unjustified substantive change that
imposes new burdens on producers. However, when read
together, those provisions reflect a consistent statutory mandate
under the CAA. The statute directs EPA to ensure that
“transportation fuel sold or introduced into commerce in the
United States . . . contains at least the applicable volume of
renewable fuel.” 42 U.S.C. § 7545(o)(2)(A)(i). Congress
focused on whether the renewable fuel is in fact consumed
within the United States. It is insufficient that the fuel might at
some point have been intended for U.S. consumption.

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The interplay between subsections 80.1426(c)(2) and
80.1431(a)(1)(viii) addresses potential discrepancies between
intended and actual fuel destinations, particularly in dynamic
global markets where fuel originally produced for domestic use
may ultimately be used elsewhere. See 88 Fed. Reg. at 44,547.
By aligning RIN validity with actual domestic usage, EPA’s
interpretation ensures consistency with the statutory goal of
promoting renewable fuel consumption within U.S. borders.
See, e.g., 88 Fed. Reg. at 44,525 n.264.
Neste contends that the Rule’s prohibition on generating
RINs from renewable fuel not used in the United States
imposes impractical burdens by requiring producers to predict
market dynamics and fuel destinations. However, EPA
reasonably addressed these concerns by noting the regulatory
flexibility available to foreign producers. See 88 Fed. Reg. at
44,547. Foreign producers can modify their storage practices
to eliminate the need to predict the final destination of their fuel
or, alternatively, rely on U.S.-based importers to generate
RINs, so long as the requirements are met under 40 C.F.R.
§ 80.1426. Id.; RTC at 358 (J.A. 1895). And producers may
notify EPA to invalidate RINs generated in error for fuel not
ultimately used in the United States.
Neste also argues that the Set Rule’s requirements amount
to a retroactive regulatory change, creating unforeseen burdens
on producers who generated RINs under prior rules.
Retroactivity principles bar agencies from imposing new
obligations on past actions without clear statutory authority.
See Sierra Club v. Whitman, 285 F.3d 63, 68 (D.C. Cir. 2002).
However, the record does not support this claim. Here, EPA’s
clarification reinforces its longstanding framework; it does not
alter past obligations or otherwise impose any retroactive
changes. See 88 Fed. Reg. at 44,547.

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For these reasons, we hold that EPA’s interpretation of
RIN generation requirements is neither arbitrary nor
capricious. Accordingly, we deny Neste’s challenges.
IV. SABR
In addition to joining with Petitioners’ other challenges as
discussed above, SABR challenges EPA’s decision to include
renewable diesel and renewable jet fuel in the Set Rule’s
biomass-based diesel program. The biomass-based diesel
category encompasses both biodiesel and renewable diesel.
Both of those fuels are substitutes for fossil-based diesel but
each is produced by a different chemical process. EPA Br. 69-
70. SABR accordingly asserts that it was arbitrary and
capricious for EPA to continue to allow “renewable diesel, and
renewable jet fuel to be used to meet the ‘biomass-based diesel’
volume requirements.” SABR Br. 10. In SABR’s view, EPA
should have “revised its compliance provisions to ensure that
only ‘biodiesel’ that qualifies as ‘biomass-based diesel’ is used
to meet that requirement.” Id. at 10-11.
Before reaching the merits of SABR’s challenge, we must
determine whether it is timely. Section 307 of the CAA
requires a challenge to a final EPA action to
be filed within sixty days from the date notice of such
promulgation, approval, or action appears in the
Federal Register, except that if such petition is based
solely on grounds arising after such sixtieth day, then
any petition for review . . . shall be filed within sixty
days after such grounds arise.
42 U.S.C. § 7607(b)(1). “This time bar is jurisdictional.”
Growth Energy, 5 F.4th at 12 (citation omitted).

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EPA asserts that SABR’s challenge to the categorical
makeup of the biomass-based diesel volumes is untimely
because EPA included renewable diesel and renewable jet fuel
as biomass-based diesel in 2010, more than thirteen years
before SABR filed its petition. In 2007, EPA explicitly
interpreted “biodiesel” under 42 U.S.C. § 13220(f) to include
both mono-alkyl ester biodiesel and non-ester renewable
diesel. Regulation of Fuels and Fuel Additives: Renewable
Fuel Standard Program, 72 Fed. Reg. 23,900, 23,917 (May 1,
2007). EPA then implemented its interpretation of the
biomass-based diesel category in 2010, when it set its first
volume standards for biomass-based diesel. See Regulation of
Fuels and Fuel Additives: Changes to Renewable Fuel
Standard Program, 75 Fed. Reg. 14,670, 14,686 (Mar. 26,
2010); 40 C.F.R. § 80.1401 (2010). Thereafter, EPA’s 2010
regulations explained that biomass-based diesel “includes both
biodiesel (mono-alkyl esters) and non-ester renewable diesel
(including cellulosic diesel),” and defined biomass-based
diesel to include renewable diesel and renewable jet fuel. 75
Fed. Reg. at 14,686, 14,864; 40 C.F.R. § 80.1401 (2010). In
2013, EPA further clarified that biomass-based diesel RINs
“may be generated for renewable jet fuel.” Regulation of Fuels
and Fuel Additives: Identification of Additional Qualifying
Renewable Fuel Pathways Under the Renewable Fuel Standard
Program, 78 Fed. Reg. 14,190, 14,201 (Mar. 5, 2013). To be
timely, SABR needed to file a petition within sixty days of one
of these instances of rulemaking. It failed to do so, and its
current petition is untimely as to this issue. Moreover, SABR
does not contend that any “after-arising” grounds exist. See 42
U.S.C. § 7607(b)(1). We therefore lack jurisdiction to reach
the merits of SABR’s biomass-based diesel challenge.
SABR next challenges EPA’s decision to adjust the
conversion factor for biomass-based diesel based on the
increasing share of that category composed of renewable

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diesel. According to EPA, however, SABR lacks Article III
standing to challenge the biomass-based diesel conversion
factor in the percentage standard equation because its members
suffer no injury from EPA’s upward adjustment of the
biomass-based diesel conversion factor. For standing
purposes, there must be an injury-in-fact—an “invasion of a
judicially cognizable interest which is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical.” Bennett v. Spear, 520 U.S. 154, 167 (1997).
“In the Set Rule, EPA adjusted the conversion factor from
1.5 to 1.6 to account for the increase in the amount of
renewable diesel relative to biodiesel in the biomass-based
diesel category.” EPA Br. 84 (citing 88 Fed. Reg. at 44,546-
47). “Early in the RFS [P]rogram, virtually all biomass-based
diesel was mono-alkyl ester biodiesel, so EPA set the
conversion factor based on the value for mono-alkyl ester
biodiesel, 1.5.” Id. at 85 (citing 88 Fed. Reg. at 44,545). “In
the Set Rule, EPA explained that due to the growth of
renewable diesel, the percentage standard equation for
biomass-based diesel should be adjusted to account for that
growth.” Id. (citing 88 Fed. Reg. at 44,546-47). As a result,
“EPA increased the biomass-based diesel conversion factor
from 1.5 to 1.6.” Id. “The effect of this change is a higher
annual volume obligation for biomass-based diesel.” Id. The
higher volume benefits SABR members because it means
obligated parties have a higher compliance obligation in the
“biomass-based diesel” category. They can satisfy that
compliance obligation by blending or purchasing RINs of any
qualifying type of biomass-based diesel, including the
biodiesel SABR members produce and distribute. Because
SABR members lack a discernible injury, SABR lacks standing
to challenge the biomass-based diesel conversion factor. We
therefore must dismiss its petition as nonjusticiable.

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CONCLUSION
For the foregoing reasons, we grant in part Environmental
Petitioners’ petition to the extent that we remand the Set Rule
to EPA and FWS without vacatur for EPA and FWS to conduct
further proceedings consistent with this decision. We deny the
petitions of Refiner and Neste Petitioners and dismiss SABR’s
petition.
So ordered.

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KATSAS, Circuit Judge, concurring in part and dissenting
in part: Imagine I am planning a celebratory chambers dinner.
I ask a law clerk to select a restaurant based on three
considerations—quality of food, cost, and proximity to the
courthouse. The clerk begins by surveying food ratings and,
based on that consideration alone, tentatively picks the Inn at
Little Washington. Then, the clerk determines the expected
cost of the meal ($300 per person, without wine) and expected
travel time (1.5 hours one-way, assuming no traffic). Without
addressing whether this expensive and distant meal is worth it,
and without assessing the quality, cost, or travel time for dinner
at any other restaurant, the clerk announces that he has
considered all the relevant factors and then books a reservation
at the Inn. Would anyone think that the clerk has fairly
understood my instructions and reasonably explained his
choice? Obviously not.
In this case, the Environmental Protection Agency did
something quite similar. Congress instructed the EPA to set
renewable fuel standards based on six considerations, including
production capacity, environmental impacts, energy security,
and fuel and food costs. Yet in setting the standards at issue,
EPA considered only one of these factors—how much
renewable fuel the industry might be capable of producing.
Then, addressing the other statutory factors, EPA determined
various costs and benefits of the standards as so set. But EPA
never weighed those costs and benefits. Nor did it consider the
costs and benefits of possible standards other than the ones
keyed to maximum production capacity. And EPA omitted
these steps even though its own analysis showed that costs—
including monetized fuel and food costs, as well as
unmonetized environmental costs—would dramatically
outstrip any climate or other benefits.
In my view, these standards are neither reasonable nor
reasonably explained. I agree that they are arbitrary for the
narrow reasons flagged by my colleagues. But I respectfully

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2
disagree with my colleagues’ broader conclusion that EPA
adequately accounted for the relevant costs and benefits. And
because the flaws in EPA’s analysis run much deeper than my
colleagues acknowledge, I not only would hold that the
standards are arbitrary, but also would set them aside.
I
The Clean Air Act requires minimum volumes of
renewable fuels to be sold in the United States as transportation
fuel. 42 U.S.C. § 7545(o)(2)(A)(i). These fuels vary according
to their feedstocks and expected reductions in greenhouse-gas
emissions. Id. § 7545(o)(1)(B), (D), (E), (J). For each of four
renewable fuel categories, Congress itself set minimum annual
volumes, in statutory tables running through 2022. Id.
§ 7545(o)(2)(B)(i)(I)–(IV). For years after 2022, EPA must set
minimum annual volumes “based on a review of the
implementation of the program during calendar years specified
in the tables, and an analysis of” six enumerated factors:
(I) the impact of the production and use of renewable
fuels on the environment, including on air quality,
climate change, conversion of wetlands, ecosystems,
wildlife habitat, water quality, and water supply;
(II) the impact of renewable fuels on the energy
security of the United States;
(III) the expected annual rate of future commercial
production of renewable fuels ... ;
(IV) the impact of renewable fuels on the
infrastructure of the United States ... ;

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3
(V) the impact of the use of renewable fuels on the
cost to consumers of transportation fuel and on the
cost to transport goods; and
(VI) the impact of the use of renewable fuels on other
factors, including job creation, the price and supply of
agricultural commodities, rural economic
development, and food prices.
Id. § 7545(o)(2)(B)(ii). Simplified, this provision requires
EPA to set minimum annual volumes “based on” its analysis of
(1) environmental impacts, including climate change, (2)
energy security, (3) production of renewable fuels, (4)
infrastructure, (5) costs, including fuel and food costs, and (6)
other factors.
At issue here are the minimum volumes that EPA set for
2023, 2024, and 2025. For each of the statutory renewable-fuel
categories, the volume requirements steadily increase from
year to year. Renewable Fuel Standards (RFS) Program:
Standards for 2023–2025 and Other Changes, 88 Fed. Reg.
44,468, 44,470 (July 12, 2023) (Final Rule).
EPA sought to justify these requirements in two steps.
First, it established “candidate volumes” based on what it
described as “a subset of the statutory factors that are most
closely related to supply of and demand for renewable fuel.”
Final Rule, 88 Fed. Reg. at 44,480. EPA acknowledged that
these “supply-related factors” did not encompass “the other
economic and environmental factors” referenced in the statute,
including factors related to costs. Id. But EPA described the
candidate volumes as “a reasonable first step” to “narrow[] the
scope for the multifactor analysis.” Id.
Second, EPA determined various costs and benefits of the
candidate volumes, measured against a baseline of no required

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4
minima. EPA summarized those effects in the rule itself, Final
Rule, 88 Fed. Reg. at 44,499–506, and it elaborated on them in
an accompanying Regulatory Impact Analysis (RIA), J.A.
1297–1773. The RIA identified some 28 “[p]otential impacts
associated with” the candidate volumes, organized around the
six statutory factors. RIA at v. Most strikingly, it determined
that these requirements would cost consumers at least $41
billion over three years: $23.8 billion in increased fuel costs
and $17.2 billion in increased food costs. Id. (fuel); see id. at
370 (food). The RIA also described in qualitative terms fifteen
different environmental harms from production and use of the
candidate volumes: four adverse effects on air quality; three
adverse effects on wetlands, ecosystems, and wildlife habitat;
six adverse effects on soil and water quality; and two adverse
effects on water quantity and availability. Id. at v.
On the other side of the ledger, the RIA identified an
energy-security benefit of $513 million over the same three-
year time frame. RIA at v. In qualitative terms, the RIA
identified benefits of increased employment and economic
development in agricultural sectors, with the caveat that
“increases in employment in some sectors may be offset by
unemployment in other sectors.” See id. at 351. Finally, the
RIA discussed at length possible climate benefits from use of
the candidate volumes, as measured by reduced greenhouse-
gas emissions over a thirty-year timeframe. See id. at 120–210.
But after surveying the relevant literature, EPA could report
only a range of widely varying estimates, and it expressly
declined to “adjudicate which particular studies, estimates or
assumptions are most appropriate.” Final Rule, 88 Fed. Reg.
at 44,500. These ranges even indicated a possibility that some
renewable fuels might increase GHG emissions because lower
emissions from burning the fuel might not offset higher
emissions from producing it. See RIA at 128. For example,
EPA noted studies indicating that lifecycle GHG emissions

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from ethanol—the most common type of renewable fuel—may
be as high as 116 grams of carbon dioxide per unit of energy,
compared to a range of 84 to 98 grams per unit of energy for
petroleum-based fuel. See id. at 161.
Despite its agnosticism about the extent of any climate
benefit, EPA went on to calculate “Illustrative Scenario[s]”
regarding GHG emissions reductions. RIA at 164. One
scenario assumed relatively high emissions for petroleum-
based fuels and relatively low emissions for biofuels; it showed
that the candidate volumes produced a sizable reduction in
emissions over three decades. Id. at 174. Another scenario
assumed relatively low emissions for petroleum-based fuels
and relatively high emissions for biofuels; it showed only a
marginal reduction in GHG emissions over the same
timeframe. See id. at 178. EPA then monetized those results
using three possible discount rates. The first scenario produced
a climate benefit somewhere between $19 billion and $115
billion. See id. at 198. The second scenario produced a climate
harm somewhere between $1.2 billion and $1.5 billion. See id.
at 206.1
After identifying the potential costs and benefits
associated with the candidate volumes, EPA imposed those
volumes with one immaterial exception.2 In doing so, EPA
1 In the second scenario, marginally reduced GHG emissions
cashed out as a net climate harm because use of renewable fuels
causes a substantial short-term increase in emissions due to land-use
changes, followed by decreased emissions gradually occurring over
longer periods and thus discounted over longer timeframes.
2 EPA shifted about one billion gallons from the advanced
biofuel requirement to the implied requirement for conventional
renewable fuel, thereby pushing the latter requirement some one
billion gallons above the outer bound of what EPA thought the
market could produce. See Final Rule, 88 Fed. Reg. at 44,517–18.

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stated that it had “balance[d] the relevant factors” and found
the candidate volumes “appropriate.” Final Rule, 88 Fed. Reg.
at 44,472. But neither the Final Rule nor the RIA attempted to
compare the various costs and benefits, whether quantitative or
qualitative, of the candidate volumes. Nor did EPA compare
the costs and benefits of the candidate volumes to the costs and
benefits of any lower possible volumes other than zero.3
II
The Clean Air Act requires us to reverse rules that are
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 42 U.S.C. § 7607(d)(9)(A). This text
copies the familiar standard of review set forth in the
Administrative Procedure Act. See 5 U.S.C. § 706(2)(A).
Therefore, in construing the governing legal standard, we must
not defer to the EPA’s views. See Loper Bright Enters. v.
Raimondo, 603 U.S. 369, 392 (2024). And in assessing EPA’s
explanation of its policy choice, we must consider whether the
decision “was based on a consideration of the relevant factors
and whether there has been a clear error of judgment.” Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983) (cleaned up). Likewise, we must set aside the
3 EPA made similarly conclusory statements in adopting the
component categories of the candidate volumes. See Final Rule, 88
Fed. Reg. at 44,513 (“Based on our analyses of all of the statutory
factors, we find that the benefits of higher volumes of cellulosic
biofuel outweigh the potential negative impacts.”); id. at 44,516
(“Based on our analyses of all of the statutory factors, we believe that
the candidate volumes derived [for advanced biofuel] would be
reasonable and appropriate to require.”); id. at 44,517 (“Our analysis
of several of the statutory factors highlighted, in our view, the
importance of ongoing support for corn ethanol generally and for an
implied conventional renewable fuel volume requirement that helps
to incentivize the domestic consumption of corn ethanol.”).

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volume requirements if EPA “entirely failed to consider an
important aspect of the problem” or “offered an explanation for
its decision that runs counter to the evidence” before it. Id. In
short, we must consider whether the requirements are
“reasonable and reasonably explained.” FCC v. Prometheus
Radio Project, 592 U.S. 414, 417 (2021).
A
Start with the governing statutory standard. It requires
EPA to set volume requirements “based on” six factors. In
ordinary parlance, that phrase connotes some measure of
balancing. If my hapless law clerk selects the Inn at Little
Washington for its superlative food quality and then simply
reports the high costs and travel times, he has not made a
decision “based on” the three relevant factors. Likewise, if
EPA selects volumes based on a “subset” of statutory factors
excluding economic and environmental considerations, Final
Rule, 88 Fed. Reg. at 44,480, and then merely reports the
various high economic and environmental costs associated
with those volumes, it has not selected the volumes “based on”
the six statutory considerations.
EPA claims to have “balance[d] all the relevant factors,”
Final Rule, 88 Fed. Reg. at 44,472, but the record indicates
otherwise. At every turn, the RIA simply racked up the many
costs and few benefits associated with the candidate volumes.
See, e.g., RIA at 115 (impact on pollutants); id. at 198 & 207
(GHG emissions); id. at 222 (wetland conversions); id. at 237–
38 (soil and water quality); id. at 270 (energy security); id. at
1675 (commodity prices); id. at 367 (food prices). But neither
the RIA nor the Final Rule attempted to weigh these competing
costs and benefits, or to explain why any concededly
speculative, long-term climate benefit might outweigh the
concededly certain, immediate, and onerous economic and

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environmental costs. Likewise, after setting candidate volumes
for the express purpose of determining maximum industry
production capacity, EPA never sought to consider whether
less ambitious standards might produce more sensible
tradeoffs. (Just as, say, my law clerk never considered whether
a Zagat-rated 28 dinner, a few minutes away and costing only
$100 per person, might be a more sensible choice than the 29-
rated dinner at the Inn.) And EPA never addressed whether to
temper the candidate volumes, even as the RIA racked up one
cost after another.
My colleagues contend that EPA need not balance the
relevant costs and benefits at all. Ante at 22. But even when a
statute says nothing about costs, agencies must take them into
account because “reasonable regulation ordinarily requires
paying attention to the advantages and the disadvantages of
agency decisions.” Michigan v. EPA, 576 U.S. 743, 752–53
(2015); see also id. at 769 (Kagan, J., dissenting) (“Cost is
almost always a relevant—and, usually, a highly important—
factor in regulation.”). My colleagues invoke cases suggesting
that a requirement to “consider” costs does not require formal
cost-benefit analysis. See Nat’l Ass’n of Home Builders v.
EPA, 682 F.3d 1032, 1039–41 (D.C. Cir. 2012); Nat’l Wildlife
Fed’n v. EPA, 286 F.3d 554, 570–71 (D.C. Cir. 2002) (per
curiam); ante at 22–23. These cases are in some tension with
Michigan v. EPA, which stressed the importance of cost
considerations unless Congress explicitly makes them
irrelevant. But in any event, the cases are inapposite here,
where the governing statute does more than simply require
some consideration of costs. As explained above, Congress
required EPA to promulgate volume requirements “based on”
specific categories of costs, 42 U.S.C. § 7545(o)(2)(B)(ii),
which implies more than merely identifying strikingly high
costs and then moving ahead anyway.

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B
EPA’s failure to weigh costs and benefits was no small
oversight. The petitioners here, including various industry and
environmental groups, contend that the costs of the Final Rule
“dwarf” its benefits. Env’t Pet. Br. 37. They are correct.
The economic costs are striking. By EPA’s own measure,
they run to at least $41 billion over three years. See RIA at v,
370. “[T]hat’s billion with a b.” White Stallion Energy Cir.,
LLC v. EPA, 748 F.3d 1222, 1259 (D.C. Cir. 2014)
(Kavanaugh, J., concurring in part and dissenting in part), rev’d
sub nom. Michigan v. EPA, 576 U.S. 743 (2015). And they
exceed the lone monetized benefit—energy security—by
almost 80 times over. See RIA at v.
Of course, climate impacts must also be considered. But
EPA declined to make any estimate of reduced GHG
emissions, other than to note widely varying ranges reflected
in the literature. And EPA declined to commit itself to any
monetized climate benefit, other than to run calculations
showing wildly disparate values depending on the emissions
estimates and discount rates selected. Moreover, even on
assumptions favorable to EPA, the numbers do not add up.
Assume for example the first scenario noted above, which
posits relatively high GHG emissions for petroleum-based
fuels and relatively low GHG emissions for renewable fuels.
Also assume a three percent discount rate—the intermediate
rate used by EPA. On those assumptions, the candidate
volumes yield a climate-change benefit of $75 billion over
thirty years, see RIA at 198, compared to increased fuel and
food costs of $41 billion over the first three years alone. One
need hardly be a trained economist to discern that, in any
apples-to-apples comparison over comparable timeframes,
EPA’s own analysis would show costs dwarfing benefits, even

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accounting for the climate. And this says nothing of the
second, less favorable scenario presented by EPA, in which
there is no climate benefit at all.
Turning to other qualitative impacts, the picture becomes
even bleaker. Most notably, consider environmental impacts
besides climate change. According to EPA, the candidate
volumes will cause increased emission of ammonia, carbon
monoxide, nitrogen oxides, sulphur dioxide, and volatile
organic compounds, among other pollutants. RIA at v. They
will cause increased conversion of various habitats to cropland,
decreased plant diversity, and increased use of harmful
pesticides. Id. They will increase erosion, deplete soil
nutrients, risk chemical contaminations, and increase stress on
aquatic life. Id. And they will deplete aquifers and divert water
used to meet human needs. Id. EPA briefly flagged economic
benefits for rural sectors that supply feedstock for renewable
fuel. See id. at 354–57. But it also noted that those benefits
may be offset by countervailing harms in other sectors, like
those supplying inputs for petroleum products. See id. at 351.
And it nowhere explained how these upstream economic
impacts could justify the eleven-digit price-tag and multiple
environmental harms noted above.
C
To justify the 2023–25 volume requirements, EPA
primarily invokes Sinclair Wyoming Refining Co. LLC v. EPA,
101 F.4th 871 (D.C. Cir. 2024), which upheld the 2022 volume
requirements. Sinclair involved an exercise of EPA’s reset
authority. Before 2022, this provision required EPA to
prospectively adjust statutory volume requirements if it had
waived substantial portions of such volumes in preceding
years. 42 U.S.C. § 7545(o)(7)(F). In making these
adjustments, EPA was required to take account of the same six

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factors at issue here. See id. For 2022, the reset authority was
triggered by waivers due to chronic shortfalls in the availability
of one narrow category of renewable fuel—cellulosic biofuel.
See Sinclair Wyo., 101 F.4th at 880. EPA took that shortfall
into account, but otherwise preserved all of the express and
implied statutory volume requirements. See id. In upholding
the reset 2022 requirements, we concluded that EPA had
“reasonably used the implied statutory volumes in setting the
2022 applicable volumes.” Id. at 888.
By contrast, there are no statutory volume requirements for
EPA to fall back on for 2023–25. EPA acknowledged that this
absence required a fundamentally different approach to setting
the requisite volumes:
We acknowledge that we are taking a different
approach to developing candidate volumes in this rule
than we did under the reset authority in the 2020–2022
rule. The primary difference is that in the 2020–22
rule the candidate volumes for non-cellulosic
advanced biofuel and conventional renewable fuel
were generally in the implied statutory volumes for
these fuel types in comparison to the statutory
volumes. In this rule we are establishing volumes for
2023–2025, a time period for which there are no
statutory targets. We therefore developed the
candidate volumes for non-cellulosic biofuel and
conventional biofuel based primarily on a
consideration of supply-related factors, with a
consideration of other relevant factors as noted in the
following sections.
Final Rule, 88 Fed. Reg. at 44,480. Given the different
statutory considerations and agency rationales, Sinclair does
not compel affirmance here.

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* * * *
In sum, EPA’s decision to impose candidate-volume
requirements is difficult to understand in light of the six
statutory factors. And all EPA offers to suggest that it balanced
those factors is its own ipse dixit, which is no substitute for
reasoned decision-making. See Am. Clean Power Ass’n v.
FERC, 54 F.4th 722, 727 (D.C. Cir. 2022).
III
For these reasons, as well as the narrower ones identified
by my colleagues, I would hold that the 2023–25 volume
requirements are arbitrary. Because those requirements are
more deeply flawed than my colleagues recognize, and because
EPA has shown no significant possibility that it will be able to
rehabilitate the requirements on remand, I would set aside the
requirements rather than simply remanding without vacatur.
See 42 U.S.C. § 7607(d)(9)(A); Allied-Signal, Inc. v. U.S.
Nuclear Regul. Comm’n, 988 F.2d 146, 151 (D.C. Cir. 1993).4
4 Other than the points addressed above, I agree with the
analysis in the per curiam opinion. Accordingly, I respectfully
dissent from parts I.A.1, I.C, and II.B.2 of that opinion, and join the
rest.

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