Brian Iverson v. United States

United States Court of Appeals
For the Eighth Circuit
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No. 19-2429
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POET Biorefining - Hudson, LLC, formerly known as Sioux River Ethanol, LLC
lllllllllllllllllllllPetitioner
v.
United States Environmental Protection Agency; Andrew Wheeler, Administrator
lllllllllllllllllllllRespondents
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Petition for Review of an Order of the
Environmental Protection Administration
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Submitted: June 16, 2020
Filed: August 21, 2020
[Published]
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Before KELLY, ERICKSON, and STRAS, Circuit Judges.
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PER CURIAM.
This case arises on POET Biorefining, LLC – Hudson’s petition to review a
letter it received from the Assistant Administrator of EPA. POET contends that the
letter embodies EPA’s final decision to deny its March 6, 2018 application to
generate D3 Renewable Identification Numbers (RINs) by producing cellulosic
ethanol from corn-kernel fiber at its facility in Hudson, South Dakota. After filing

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its petition for review, POET withdrew its 2018 application. POET has since filed
a new, non-identical application to generate D3 RINs at its Hudson facility, which is
currently pending for EPA’s review. We conclude that the controversy regarding
EPA’s alleged denial of POET’s 2018 application is moot and dismiss the petition.
I.
In 2005 and 2007, Congress amended the Clean Air Act to establish the
Renewable Fuel Standards (RFS) program. 42 U.S.C. § 7545(o). The RFS program
identifies four categories of renewable fuel—cellulosic biofuel, biomass-based diesel,
advanced biofuel, and total renewable fuel—and specifies an annual volume of each
type of renewable fuel that refiners and importers of gasoline must introduce into the
United States each year. Id. § 7545(o)(2)(B)(i).
To implement the RFS program, EPA issues RINs for each gallon of renewable
fuel that is produced or imported for use in the United States. See 40 C.F.R.
§ 80.1426(a). Refiners and importers can satisfy their renewable-fuel obligations by
generating RINs or by obtaining them on the secondary market. See 42 U.S.C.
§ 7545(o)(5)(B). Each RIN is assigned a “D code” with a value identifying the type
of renewable-fuel obligation it can be used to satisfy. See 40 C.F.R. § 80.1425(g).
RINs assigned a “D6” code can only be used to satisfy the total renewable-fuel
obligation, whereas RINs assigned a “D3” code can also be used to satisfy the
advanced and cellulosic-biofuel obligations. See id. § 80.1426(f). As a result, EPA
estimates that D3 RINs “are typically 3 to 4 times more valuable” than D6 RINs.
Since 2013, POET’s Hudson facility has been registered to generate D6 RINs
by producing conventional ethanol from the inner starch of corn kernels. In 2014,
EPA issued a final rule recognizing a new pathway for producers to generate D3 RINs
by producing cellulosic ethanol from the outer fiber of corn kernels. On March 6,
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2018, POET submitted an application to generate D3 RINs by producing cellulosic
ethanol from corn-kernel fiber at its Hudson facility.
EPA expressed technical concerns about POET’s application, and POET and
EPA engaged in a back-and-forth discussion over the course of the next year.
Following a meeting between POET and the Administrator of EPA, EPA issued a
letter on May 7, 2019, “to provide an explanation of [its] interpretation and
application of [its] regulatory requirements to this matter.” The letter states that
POET’s application “has not resolved EPA’s overall technical concerns” and
articulates “criteria for the type of analysis and demonstrations that EPA believes
would be an appropriate basis for registration under the program.” The letter notes
that EPA intends to “continue evaluating” POET’s application when new materials
become available to facilitate EPA’s review. EPA did not reject POET’s application
in its electronic system like it ordinarily does when denying a registration request.
On July 5, 2019, POET filed this petition to review EPA’s letter. POET argues
that (1) the letter was a final agency action denying its 2018 application; (2) the
criteria imposed by the letter are contrary to law because they contravene EPA’s 2014
final rule; and (3) the criteria imposed by the letter are arbitrary and capricious
because they cannot currently be satisfied and are inconsistent with the evidence
submitted with POET’s 2018 application. EPA contends that the letter was not a final
agency action, but was instead one part of an ongoing conversation about EPA’s
technical concerns. Alternatively, EPA defends the letter on the merits.
On July 8, 2019, POET withdrew its 2018 application. 23 days later, POET
emailed EPA a letter explaining that it took this “administrative step” to update an
unrelated aspect of its registration to generate D6 RINs for conventional ethanol.
POET explained that it was necessary to withdraw its application in its entirety
because EPA’s electronic system does not allow a facility to have two registration
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requests in the system at the same time. POET advised that this action “should not
be considered a voluntary withdrawal of the Hudson Registration Application.”
On April 10, 2020, POET submitted a new application to generate D3 RINs for
producing cellulosic ethanol at its Hudson facility. POET represents that its new
application is “identical in all relevant respects” to its 2018 application. By this,
POET means that the new application does not comply with the criteria articulated
in EPA’s letter. However, POET notes that the 2020 application contains a revised
method for measuring cellulosic content as well as “additional data to address
technical concerns expressed by EPA.” The application contains approximately 375
pages, and EPA “has not fully reviewed the engineering review and supporting
information” at this time.
II.
“Article III of the Constitution only allows federal courts to adjudicate actual,
ongoing cases or controversies.” Potter v. Norwest Mortg., Inc., 329 F.3d 608, 611
(8th Cir. 2003). This requirement “denies federal courts the power to decide
questions that cannot affect the rights of litigants in the case before them, and
confines them to resolving real and substantial controversies admitting of specific
relief through a decree of a conclusive character.” Lewis v. Cont’l Bank Corp., 494
U.S. 472, 477 (1990) (cleaned up). A case fails to satisfy the case-or-controversy
requirement when “an intervening circumstance deprives the plaintiff of a personal
stake in the outcome of the lawsuit” and makes it “impossible for a court to grant any
effectual relief.” Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (cleaned
up). “When an action no longer satisfies the case or controversy requirement, the
action is moot and a federal court must dismiss the action.” Potter, 329 F.3d at 611.
Although the parties have not argued this case is moot, “we nevertheless are
constrained from addressing any issues presented by moot cases.” South Dakota v.
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Hazen, 914 F.2d 147, 149 (8th Cir. 1990). Because “the mootness question is
jurisdictional,” “[i]t is of no significance that the parties may desire a resolution of
the issues a moot case presents.” Id. “The parties may not by stipulation invoke the
judicial power of the United States to decide questions over which this Court has no
jurisdiction.” Id. (cleaned up).
We conclude that POET’s withdrawal of its 2018 application and submission
of its non-identical 2020 application have mooted this action. POET concedes that
“this Court could not now order EPA to grant the March 2018 application.” This is
because EPA cannot grant an application that has been withdrawn. For this same
reason, we cannot remand this action with instructions that EPA review the
withdrawn 2018 application in a particular manner.
Nonetheless, POET argues that we could grant effectual relief by vacating
EPA’s alleged denial of the withdrawn application and including language in our
opinion that “will force EPA to evaluate Hudson’s pending registration application
under the appropriate standard.” But any registration of the Hudson facility will not
be pursuant to the 2018 application we have been asked to review. And any dispute
regarding POET’s pending application is not currently before us. Opining about the
standards EPA should apply to POET’s pending application would amount to an
advisory opinion, which we have no jurisdiction to issue. See Preiser v. Newkirk,
422 U.S. 395, 401 (1975).
Instead, we leave POET’s pending application to the usual processes of
administrative and judicial review. EPA must act on the application without
unreasonable delay. See 42 U.S.C. § 7604(a). If POET is unsatisfied with EPA’s
determination, it may then seek judicial review. 42 U.S.C. § 7607(b).
The petition is dismissed.
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