Coalition for Renewable Natural Gas v. Environmental Protection Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 25, 2024 Decided July 19, 2024
No. 23-1248
COALITION FOR RENEWABLE NATURAL GAS,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS, ET
AL.,
INTERVENORS
On Petition for Review of a Final Action
of the Environmental Protection Agency
Jonathan Y. Ellis argued the cause for petitioner. With
him on the briefs was Sandra P. Franco.
Kimere J. Kimball and Alexander M. Purpuro, Attorneys,
U.S. Department of Justice, argued the causes for respondent.
With them on the brief were Todd Kim, Assistant Attorney
General, and Lucas May, Attorney, U.S. Environmental
Protection Agency. Joseph W. Crusham and John H. Martin,
Attorneys, U.S. Department of Justice, entered appearances.

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Before: HENDERSON, MILLETT, and GARCIA, Circuit
Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: To ensure that America’s
transportation-fuel mix contains the statutorily required
amounts of renewable fuel, EPA updated how it accounts for
biogas-derived renewable fuel. Because its prior system was
vulnerable to fraud and error, EPA implemented a more
structured process that allocated reporting burdens among
different fuel groups. An industry group petitioned this court
to overturn EPA’s changes. Because EPA’s modifications are
reasonable and supported by substantial evidence, we deny the
petition for review.
I
A
Under the Clean Air Act’s Renewable Fuel Program, EPA
“shall promulgate regulations 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). Renewable fuel is
produced from specific organic matter, known as qualifying
“renewable biomass[,]” and is “used to replace or reduce the
quantity of fossil fuel present in a transportation fuel.” Id.
§ 7545(o)(1)(J). “[R]enewable biomass,” in turn, is any matter
that falls into one of seven specified categories such as
“[a]nimal waste and material and animal byproducts[,]”
[a]lgae[,]” and certain “[p]lanted trees and tree residue[.]” Id.
§ 7545(o)(1)(I). As such, “renewable fuel” encompasses a
swath of products that include particular ethanols, biodiesels,

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and compressed or liquified natural gases. 40 C.F.R.
§ 80.1426, Table 1.
Congress charged EPA with calculating annually the
“applicable volume of renewable fuel” to be used in the
Nation’s transportation fuel. 42 U.S.C. § 7545(o)(2)(A)(i); id.
§ 7545(o)(2), (3). It also directed EPA to place “renewable fuel
obligation[s]” on “refineries, blenders, and importers, as
appropriate” to ensure those entities bring enough renewable
fuel into the United States marketplace. Id.
§ 7545(o)(3)(B)(ii)(I); American Fuel & Petrochemical
Manufacturers v. EPA, 937 F.3d 559, 570–571 (D.C. Cir.
2019) (per curiam).
Those covered parties demonstrate compliance with
renewable fuel obligations through the EPA’s credit-trading
program. See 42 U.S.C. § 7545(o)(5); American Fuel, 937
F.3d at 571–572. That program’s lifeblood is a credit called a
“RIN.” Wynnewood Ref. Co., LLC v. EPA, 77 F.4th 767, 774
(D.C. Cir. 2023). Parties generate RINs by producing or
importing renewable fuel. See American Fuel, 937 F.3d at
571–572; 40 C.F.R. § 80.1426. RINs attach to the renewable
fuel and can later be separated from the fuel—that is, they
become an asset in the hands of their owner that can either be
credited toward the owner’s own renewable-fuel obligations or
traded to other companies in need of renewable-fuel credits.
See 40 C.F.R. §§ 80.1426, 80.1427, 80.1428, 80.1429; 42
U.S.C. § 7545(o)(5)(B); Sinclair Wyo. Ref. Co. LLC v. EPA,
101 F.4th 871, 879 (D.C. Cir. 2024).
This case involves biogas. Biogas comes from
decomposing organic matter like sewage, food and crop waste,
or manure. It can be used to produce transportation fuel once
it has been collected, treated, and then liquified or compressed.
When the decomposing organic matter that created the biogas

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is a qualifying renewable biomass, EPA considers the biogas-
derived transportation fuel to be renewable fuel. See 40 C.F.R.
§§ 80.125(b)(3), 80.1426(a)(1)(ii).
Biogas is commonly converted into renewable fuel
through a multi-step commercial distribution system. First, the
biogas is extracted from its source waste at places like landfills
or livestock operations. Second, the extracted biogas is treated
to remove impurities and to increase its methane content. This
treatment process transforms the biogas into renewable natural
gas which is then injected into a commercial pipeline. Third,
downstream parties extract the renewable natural gas and
convert it to renewable fuel by liquifying or compressing it so
that it can be used as transportation fuel.
Renewable natural gas producers generate RINs when the
renewable natural gas is injected into the pipeline. See 40
C.F.R. § 80.125(b)(1). Those RINs can be separated (i.e.,
turned into an asset distinct from the fuel) only by the party
who withdraws the renewable natural gas from the pipeline, the
party that compresses or liquifies it, or the party that uses or
dispenses the compressed or liquified natural gas as
transportation fuel. Id. § 80.125(d)(1).
B
Administering the RIN process for biogas-derived
renewable fuel has proven difficult. See 88 Fed. Reg. 44468,
44524 (July 12, 2023). That is because the end-product fuel
counts as renewable only if it is used for transportation fuel and
the gas that produced it comes from the right source. See 42
U.S.C. § 7545(o)(1)(J). Yet it is hard to tell at the start of the
chain where the biogas will end up, and it is just as hard to tell
at the chain’s end where the biogas began. See 88 Fed. Reg. at
44524–44526. EPA has to meticulously track each step of the

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process to make sure that only valid RINs are generated and
accepted. And parties have incentive to try to pass off non-
renewable products as renewable since RINs have “significant
value” in the transportation-fuel marketplace. Id. at 44525;
J.A. 537 (EPA Response to Comments). The system also
risked leaving parties confused or unable to verify whether the
fuel they possessed was RIN-eligible, and so inadvertent
mistakes could easily be made when generating RINs. 88 Fed.
Reg. at 44524–44526.
As a result, in 2023, EPA revamped its approach to biogas-
derived renewable fuel’s commercial-distribution and RIN-
generation track. To deter fraud and reduce the risk of error,
EPA specified that “[o]nly [renewable-natural-gas] producers
may generate RINs for [renewable natural gas] injected into a
natural gas commercial pipeline system.” 88 Fed. Reg. at
44567 (codified at 40 C.F.R. § 80.125(b)(1)). Renewable-
natural-gas producers seeking to generate RINs for biogas-
derived natural gas also have to obtain their biogas from biogas
producers that have registered with EPA. 40 C.F.R.
§ 80.125(b)(2). EPA adopted new prerequisites for any biogas
producer seeking to participate in the Renewable Fuel
Program. Id. § 80.105. Among other things, they must register
with EPA, submit reports, keep records, and follow a sampling,
testing, and measuring regime. Id.
EPA also allowed biogas used as a biointermediate to
generate RIN-eligible renewable fuel. See, e.g., 40 C.F.R.
§ 80.100(d)(5). Biointermediates are “biomass feedstocks that
are partially processed at one facility before being transported
to a different facility to complete processing into renewable
fuel.” 88 Fed. Reg. at 44523. This change enabled a party to
generate RINs using biogas that was only partially processed
at one facility before its biointermediate was sent to another
facility to be turned into renewable natural gas. Id. at 44523.

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II
The Coalition for Renewable Natural Gas is a trade
association that represents companies and organizations that
operate throughout the renewable-natural-gas chain. The
Coalition submitted comments on EPA’s updated rule arguing
that it was too rigid and burdensome for the Coalition’s
members, and that EPA had no authority to regulate biogas
producers. After EPA promulgated its final rule, the Coalition
petitioned this court for review.
We have jurisdiction under 42 U.S.C. § 7607(b)(1). We
review EPA’s final rule to see if it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.”
Sierra Club v. EPA, 863 F.3d 834, 837 (D.C. Cir. 2017)
(quoting 5 U.S.C. § 706(2)(A)); 42 U.S.C. § 7607(d)(9)(A).
We also must ensure that EPA acted within its statutorily
assigned role and followed proper procedures in adopting the
rule. 42 U.S.C. § 7607(d)(9)(C), (D). We will invalidate
EPA’s rules for a procedural error only if that error is properly
before us, arbitrary, and “so serious and related to matters of
such central relevance to the rule that there is a substantial
likelihood that the rule would have been significantly changed
if such error[] had not been made.” Id. § 7607(d)(8); id.
§ 7606(d)(9)(D).
III
The Coalition mounts nine substantive or procedural
attacks against EPA’s 2023 biogas regulation updates. We
deny the petition because seven of those challenges are without
merit, and the remaining two are not properly before us.

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A
The Coalition first claims that EPA has no authority to
regulate biogas producers. EPA relied on its Section
7545(o)(2)(A)(i) authority to include biogas producers in its
regulatory scheme. That section specifies that EPA’s
renewable fuel regulations “shall contain compliance
provisions applicable to refineries, blenders, distributors, and
importers, as appropriate, to ensure that the requirements * * *
are met.” 42 U.S.C. § 7454(o)(2)(A)(iii)(I) (emphasis added).
(For ease of reference, we shall refer to this statutory provision
as the “shall-contain” mandate.) Because that list does not
include producers, the Coalition insists that EPA cannot
regulate them at all under Section 7545(o)(2)(A)(i).
The Coalition overreads the shall-contain mandate. By its
plain text, that provision requires only that EPA regulations
include rules governing those specified parties. It is a
regulatory floor, not a cap. Nothing in the shall-contain
mandate restricts what those regulations can otherwise do or to
whom else they can apply. Contrast 42 U.S.C. § 7545
(o)(2)(A)(iii)(II) (requiring in the very next subparagraph that
EPA’s regulations “shall not” do certain things).
In other words, to say that EPA’s regulations “shall
contain compliance provisions applicable to refineries,
blenders, distributors, and importers,” 42 U.S.C. § 7454
(o)(2)(A)(iii)(I), is not to say that the regulations shall contain
only those compliance provisions or that all its rules shall apply
only to those enumerated parties. See NLRB v. SW General,
Inc., 580 U.S. 288, 300 (2017) (rejecting an interpretation that
Congress “could easily have chosen clearer language” to
convey). Instead, the shall-contain mandate’s listed entities are
simply “[a]mong the parameters Congress required EPA to

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include” in its regulations. Alon Ref. Krotz Springs, Inc. v.
EPA, 936 F.3d 628, 654 (D.C. Cir. 2019) (emphasis added).
That reading of the shall-contain mandate fits naturally
within the broader Section 7545(o) framework. See Biden v.
Nebraska, 143 S. Ct. 2355, 2379–2384 (2023) (Barrett, J.,
concurring).
Section 7545(o) gives EPA both a task and the means to
accomplish it: “‘[P]romulgate regulations’ setting up a
program to ‘ensure that transportation fuel sold or introduced
into commerce in the United States * * * contains at least the
applicable volume[s] of renewable fuel[.]’” Alon Ref. Krotz
Springs, 936 F.3d at 654 (ellipsis and second alteration in
original) (quoting 42 U.S.C. § 7545(o)(2)(A)(i)). That task is
nonnegotiable; EPA “shall” execute it. 42 U.S.C.
§ 7545(o)(2)(A)(i); see Maine Cmty. Health Options v. United
States, 140 S. Ct. 1308, 1320 (2020) (“The first sign that the
statute imposed an obligation is its mandatory language:
‘shall.’”); Heating, Air Conditioning, & Refrigeration Distrib.
Int’l v. EPA, 71 F.4th 59, 67 (D.C. Cir. 2023) (statute telling
EPA to “ensure” something was ordering it to “guarantee that
result”).
To get the job done, EPA must be able to distinguish
renewable from nonrenewable fuel. In this context, that means
EPA must be able to verify that the biogas-derived fuel it is
being asked to count as renewable was made with the correct
biogas. See 42 U.S.C. § 7545(o)(1)(J); 88 Fed. Reg. at 44481.
Without regulating biogas producers, EPA struggled to
perform that verification, leaving it at risk of failing to “ensure”
applicable volume targets were met. 42 U.S.C.
§ 7545(o)(2)(A)(i); see supra pages 4–5. The biogas-producer
requirements are a natural and needed fix to that problem.
Accordingly, contrary to the Coalition’s suggestion that the

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major questions doctrine applies, we have no “reason to
hesitate” in this case, West Virginia v. EPA, 142 S. Ct. 2587,
2595 (2022) (quotation marks omitted), before concluding that
Congress authorized the EPA’s regulation of producers. After
all, Congress expressly charged EPA with “promulgat[ing]
regulations * * * to ensure that transportation fuel sold or
introduced into commerce in the United States * * * contains
the applicable volume of renewable fuel[.]” 42 U.S.C.
§ 7545(o)(2)(A)(i); see Life Techs. Corp. v. Promega Corp.,
580 U.S. 140, 149 (2017) (interpreting statute to “provide[] an
administrable construction”). Verifying the sourcing of
renewable fuel by its producers is essential to meeting
Congress’s mandate.
Anyhow, to the extent that the shall-include mandate limits
EPA’s regulatory authority at all, it is not in the way the
Coalition suggests. At most, it could be argued that the entities
listed in the shall-include mandate are the only ones for which
EPA can require “compliance” with regulatory obligations.
See 42 U.S.C. § 7545 (o)(2)(A)(iii)(I). That might make sense
because the “shall include” group of “refineries, blenders,
distributors, and importers” are necessarily involved in the
renewable fuel process—and, more broadly, the transportation-
fuel business—no matter that fuel’s source. As a result, EPA
will have to regulate those entities as part of the Renewable
Fuel Program regardless of whether the renewable fuel is
generated from “ethanol,” “biomass-based diesel,” “butanol or
other alcohols,” or some other source. 42 U.S.C.
7545(o)(1)(B)(ii).
By contrast, biogas producers do not have to participate in
the renewable fuel scheme at all. Renewable fuel derived from
biogas is just one permissible source from which EPA may
meet its statutory mandate. Biogas could, instead, be excluded
entirely.

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In any event, the Coalition challenges only voluntary
protocols, not compliance obligations. Under the updated
regulations, biogas producers may elect to follow those rules if
they wish to participate in the transportation-fuel economy and
the RIN program. See 80 C.F.R. § 80.125(b). But, unlike the
listed blenders, distributors, and importers, those producers
could choose instead to use their biogas for non-renewable
fuels or let it simply float off into the atmosphere.
So if those producers decide that they no longer want to
record, measure, or report per the regulations, they are free to
stop. EPA is not forcing them to comply with anything. All
the regulations provide is that, if and when biogas producers
independently decide that they want to enjoy the financial
benefits of the RIN program, they must follow the anti-fraud,
anti-error compliance measures that are part and parcel of the
program.
As such, our decision is narrow. We hold only that EPA
may use Section 7545(o)(2)(A)(i) to put in place processes to
verify that its renewable-fuel targets are being met, and that—
under the same provision—it may require biogas producers to
follow those processes if they choose to participate in the RIN
program.1
1 To the extent that the Coalition broadly attacks EPA’s
authority to promulgate any specific biogas-producer requirements,
see Coalition Opening Br. 31, 39, those challenges were not raised
below, and so are not properly before us, see 42 U.S.C.
§ 7607(d)(7)(B).

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B
The Coalition claims that three categories of the EPA’s
regulations are arbitrary and capricious: those related to
biogas-producers, testing, and measurement. Not so.
1
The challenged regulations require those renewable-
natural-gas producers that wish for their gas to become RIN-
eligible fuel to test their gas, keep records of the results, and
submit auditor attestations. 40 C.F.R. § 80.110(f)(2)(iii); id.
§ 80.145(c)(5), (6); id. § 80.165(a). Auditors must report if the
gas does not meet its pipeline’s “natural gas specifications[.]”
Id. § 80.165(c)(4)(iii); id. § 80.135(d)(5). In addition,
registered biogas producers who decide to participate in the
Renewable Fuel Program “must only supply biogas for only
one” of three specified uses, one of which is producing
renewable natural gas via a commercial distribution system.
Id. § 80.105(k)(1).
The Coalition argues that placing those registration,
reporting, recordkeeping, and single-use requirements on
participating biogas producers is arbitrary and capricious.
According to the Coalition, “there is no actual need for these
requirements,” and so EPA’s justification “is not sufficient to
impose undue regulatory hurdles that may disincentivize those
parties Congress sought to incentivize to support biofuel
production.” Coalition Opening Br. 37–38.
The Coalition is speaking in the wrong register. To pass
muster, regulations need not be necessary. They need only be
“reasonable and reasonably explained.” Stilwell v. Office of
Thrift Supervision, 569 F.3d 514, 519 (D.C. Cir. 2009). The
challenged regulations were both. Before the regulatory

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update, EPA often had to review a disorganized array of
contracts to ensure that only validly earned RINs were
generated. 88 Fed. Reg. at 44524–44525. Not only was that
review difficult, it left the door open to fraud and accidental
double counting, both of which contravene Congress’s
statutory directives. Id. at 44524–44526.
Renewable natural gas’s nature amplifies those risks.
Whether natural gas is renewable depends on whether its
biogas came from a renewable biomass. See 42 U.S.C.
§ 7545(o)(1)(J). That can be hard to track. See 88 Fed. Reg. at
44524–44526. The higher value of biogas from renewable
biomass—compared to that of biogas from nonrenewable
biomass—also gives parties an incentive to claim falsely that
an eligible biomass was used, thereby defrauding the program.
88 Fed. Reg. at 44525; see also J.A. 537 (EPA Response to
Comments). And allowing parties to generate RINs from
biogas-derived biointermediates made things worse because it
introduced another stop, and another party, to monitor on the
path from biogas to renewable fuel.
The EPA’s regulatory updates aimed to disentangle those
“layers of complexity” in a “system that is already challenging
to implement and oversee.” 88 Fed. Reg. at 44524. To deal
with the heavy administrative burdens and the risks of fraud
and mistake, EPA reasonably decided that biogas producers—
who have first-hand knowledge of which biomass was used to
generate their biogas—should bear some responsibility for
demonstrating that their biogas is eligible to generate RINs.
See id. at 44525–44526, 44532–44534, 44540–44541; J.A.
547, 581–583 (EPA Response to Comments). Likewise,
requiring biogas producers to use their product in only one way
helps to “minimiz[e] program complexity” and “eliminat[es]
the opportunity for double counting in the first place.” Id. at
44540; J.A. 581–583 (EPA Response to Comments).

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The Coalition responds that EPA’s regulations will push
biogas producers out of the biofuel market. See Coalition
Opening Br. 35. But the Clean Air Act does not pursue biofuel
production at all costs. It establishes renewable-fuel targets
and requires EPA to ensure the market meets them. See 42
U.S.C. § 7545(o)(2)(A)(i). These updated regulations directly
and reasonably support that objective by reducing the risk that
non-renewable fuel is counted toward the renewable-fuel
target. If biogas producers choose to opt out of a more
trustworthy renewable-transportation-fuel market, that is their
choice.
As for the Coalition’s suggestion that, because of these
new regulations, too few biogas producers will opt into the
scheme to meet EPA’s renewable fuel targets, the Coalition
offers nothing to substantiate that claim. See, e.g., Coalition
Opening Br. 4. Its silence is particularly indicting because EPA
may rely on non-biogas-derived sources of renewable fuel to
meet those targets. The EPA, for its part, considered these
concerns and reasonably decided that the hypothetical risk of
overburdening biogas producers was outweighed by the known
risk of fraud and double counting that directly undermines the
Renewable Fuel Program. See J.A. 539–540 (EPA Response
to Comments).
2
The Coalition also claims that EPA failed to explain why
it must “monitor compliance with pipeline specifications
through costly and extensive testing” when commercial
pipelines already monitor their own specifications. Coalition
Opening Br. 43.
EPA actually does have an explanation: Its regulatory
requirements are “necessary * * * since the definition of

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[renewable natural gas] depends on the pipeline
specifications.” J.A. 555. Specifically, to be renewable natural
gas, a product must “not require removal of additional
components to be suitable for injection into the natural gas
commercial pipeline system.” 40 C.F.R. § 80.2. Knowing the
commercial pipeline specifications, and knowing that the
product meets them, helps EPA verify that the renewable
natural gas “complies with the pipeline specification for RIN
generation and to ensure cleaning of biogas is occur[r]ing[.]”
J.A. 573 (EPA Response to Comments); J.A. 555 (EPA
Response to Comments). It is, after all, EPA’s statutory duty
to ensure that the product injected into the transportation
system is the type of renewable fuel Congress specified.
The Coalition does not like that explanation. It prefers that
EPA just trust pipeline operators to run its checks for it. But it
is not arbitrary for EPA to verify for itself that a product meets
Congress’s standards before it hands out valuable RINs. See
J.A. 555 (“We believe it is imperative to show that the product
of the [renewable-natural-gas] producer meets the
requirements for [renewable natural gas].”). EPA “is not
required to choose the best solution, only a reasonable one.”
Petal Gas Storage, LLC v. FERC, 496 F.3d 695, 703 (D.C. Cir.
2007).
3
Under the EPA’s regulations, any party that is “required to
measure the volume of biogas[ or renewable natural gas]” must
use either an “[i]n-line GC meter compliant with” specified
international standards and a “flow meter[]” compliant with
other specified international standards, or an approved
“alternative measurement protocol[.]” 40 C.F.R. § 80.155(a).
The Coalition calls this requirement arbitrary because EPA did
not explain why it adopted it. Coalition Opening Br. 44.

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Yet EPA did explain its rationale, and reasonably so. EPA
said that, given the commercial value of RINs, “parties have
clear incentives to manipulate testing and measurement results
to appear to have produced more biogas, [renewable natural
gas], and biogas-derived renewable fuels than they actually
did.” 88 Fed. Reg. at 44534. So EPA adopted these “specific
testing and measurement procedures” to “ensure the validity of
RINs and a level playing field for RIN generators,” rather than
one undermined by fraud and error. Id. EPA relied on its
technical expertise in choosing which procedures to select, a
judgment well within its wheelhouse. See id. at 44535 (“These
standards are based on methods used for these measurements
which have been submitted to us in the past and which we
believe provide sufficient accuracy.”).
The Coalition layers on to its argument an objection to
EPA’s prohibition on generating RINs for any renewable
natural gas stored off-site before EPA accepts the renewable-
natural-gas producer’s registration. See 40 C.F.R. § 80.1458;
88 Fed. Reg. at 44539–44540. The Coalition argues that if a
renewable-natural-gas producer needs to use an alternative
protocol to verify its biogas, it may face significant delays in
getting registered, and so may encounter unreasonable on-site
storage constraints.
EPA’s choice was sensible. Allowing parties to generate
RINs for renewable natural gas stored off-site posed significant
oversight challenges. 88 Fed. Reg. at 44540. Due to the
indeterminate and undisclosed period such renewable natural
gas might be off-site, it had proved “difficult * * * to track
discrete volumes * * * that [we]re claimed for RIN
generation[.]” Id. The EPA’s new rule reasonably addresses
that quality-control concern by requiring that any renewable
natural gas produced before registration complies with EPA’s

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renewable-fuel requirements and is kept in a facility that passes
a third-party engineering review. Id. at 44539–44540; 40
C.F.R. § 80.1458.
As for concerns about registration delays, EPA explained
that it had “greatly decrease[d] the time necessary to process
registrations and thus eliminat[ed] the need for offsite
storage[.]” 88 Fed. Reg. at 44539.
C
In addition to those substantive challenges to the updated
regulations, the Coalition launches several procedural
challenges. None holds up.
1
To start, the Coalition argues that EPA’s proposed rule
violated the Clean Air Act’s procedural requirements by giving
“no explanation or factual support to connect numerous of the
provisions to its claimed need for additional oversight to
prevent double counting and fraud.” Coalition Opening Br.
51–52.
The Clean Air Act, though, does not require EPA’s
proposed rule to provide a detailed explanation or factual
record supporting each of its choices. As a procedural matter,
the statute requires only that the proposed rule state its “basis
and purpose,” including a summary of the data, methodology,
legal authority, and policy considerations on which the EPA
relied. 42 U.S.C. § 7607(d)(3); see Small Refiner Lead Phase-
Down Task Force v. EPA, 705 F.2d 506, 518–519 (D.C. Cir.
1983); see also Vermont Yankee Nuclear Power Corp. v.
Natural Res. Def. Council, Inc., 435 U.S. 519, 548 (1978)

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(forbidding courts from adding procedural requirements that
are missing from the statutory text).
The regulations clear Section 7607(d)(3)’s bar. In its
proposed rule, EPA discussed the considerations informing the
rulemaking, laying out in particular its fraud and double-
counting concerns. See, e.g., 87 Fed. Reg. 80582, 80643–
80644, 80694–80697 (Dec. 30, 2022). The EPA also found
that “a not insignificant quantity of invalid RINs have been
generated.” Id. at 80643. In doing so, EPA detailed how and
why RIN invalidity occurs, id., why the earlier regulations fell
short, id. at 80643–80644, 80692–80693, and how the updates
would help, id. at 80644, 80692–80693, 80696–80697. To be
sure, EPA did not provide much hard data on fraud—
presumably because the prior regulations did not require the
types of oversight or record-keeping that are necessary to
reliably flush that problem out. While the Clean Air Act
requires EPA to identify in a final rule any “factual data on
which the proposed rule is based[,]” 42 U.S.C. § 7607(d)(3)(A)
(emphasis added), it does not require EPA to provide data it did
not use. Neither does Section 7067(d)(3)(A) procedurally
require EPA to marshal the very factual information that the
prior regulatory scheme made it impossible to collect. See id.;
Solite Corp. v. EPA, 952 F.2d 473, 484 (D.C. Cir. 1991)
(explaining that a similar requirement in the APA obligates it
to reveal “technical studies and data” that is has actually
“employed” in promulgating its rule) (quotation marks
omitted).
2
The Coalition separately argues that the EPA added
renewable fuel “[l]eakage” as a reason for RIN retirement in
the proposed rule without proper explanation. Even if true,
EPA’s alleged error would be harmless because there is no

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“substantial likelihood” that EPA would have “significantly
changed” its final rule if it had explained “leakage’s” addition
earlier in the regulatory process. See 42 U.S.C. § 7607(d)(8);
id. § 7606(d)(9)(D). EPA said in response to comments that it
added “leakage” just to clarify the status quo under which
losing fuel with an attached RIN invalidates that RIN because
the lost fuel cannot be used for transportation. J.A. 545–546.
Given that EPA considered and rejected objections to the
provision, and explained that it was merely clarifying existing
requirements, any failure to provide that rationale earlier was
harmless. See Small Refiner, 705 F.2d at 523.
3
The Coalition additionally claims that three parts of the
final rule were not logical outgrowths of the proposed rule. But
the Coalition raised two of these arguments for the first time in
a motion for reconsideration that is still pending before the
EPA, and never raised the third at all before this petition. As a
result, we may not entertain any of them at this time. See 42
U.S.C. § 7607(d)(7)(B) (“Only an objection to a rule or
procedure which was raised with reasonable specificity during
the period for public comment * * * may be raised during
judicial review.”); EME Homer City Generation, L.P. v. EPA,
795 F.3d 118, 137 (D.C. Cir. 2015) (“Because that argument is
an objection to the notice and comment process itself,
petitioners obviously did not and could not have raised it during
the period for public comment * * * [and so] the only
appropriate path for petitioners to raise this issue is through an
initial petition for reconsideration to EPA.”).
D
Lastly, the Coalition argues that, “in light of the numerous
issues and outstanding questions regarding the final rule and

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the limited guidance from EPA,” EPA’s implementation dates
for the new rules “have been rendered arbitrary.” Coalition
Opening Br. 57. Its brief, however, fails to raise any additional
issues or outstanding questions beyond those considered and
rejected here. EPA, for its part, reasonably selected its current
implementation dates based on feedback from the comment
period. See 88 Fed. Reg. at 44530. Indeed, for existing
facilities, EPA chose the date that the Coalition requested. J.A.
403. There is nothing arbitrary about that.
* * *
For the foregoing reasons, the Coalition’s petition for
review is denied.
So ordered.

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