United States Court of Appeals, District of Columbia Circuit
November 8, 2018
Petition for Review of an Action of the United States
Environmental Protection Agency
L. Kline argued the cause for petitioner. On the briefs were
Clara Poffenberger, Lisa M. Jaeger, Brittany M. Pemberton,
Warren W. Harris, Yvonne Y. Ho, and Christopher L. Dodson.
Megan H. Berge, Vincent M. Wagner, and Evan A. Young entered
Benjamin R. Carlisle, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
Jeffrey H. Wood, Acting Assistant Attorney General, and
Jonathan D. Brightbill, Deputy Assistant Attorney General.
Before: Henderson, Rogers, and Srinivasan, Circuit Judges.
Srinivasan Circuit Judge
Energy Independence and Security Act of 2007 contains a
citation to nowhere. The Act requires gasoline sold in the
United States to include a certain amount of renewable fuel,
and tasks the Environmental Protection Agency with conducting
periodic reviews to enable appropriate adjustments to the
renewable-fuel requirements. In setting out EPA's
periodic-review obligation, the statute directs the agency to
examine certain requirements ostensibly set out in a
referenced provision of the Clean Air Act. The cited
provision, though, does not exist.
effort to make sense out of nonsense, EPA issued a document
setting forth its interpretation of the periodic-review
provision and explaining why it believes it has complied.
Valero Energy Corporation, a petroleum refiner, took issue
with EPA's position in the document and filed a petition
for review in this court. We conclude that the EPA document
does not constitute final agency action. We therefore dismiss
Valero's petition for lack of jurisdiction.
and 2007, Congress amended the Clean Air Act to establish the
Renewable Fuel Standards program. See Energy Policy
Act of 2005, Pub. L. No. 109-58, 119 Stat. 594; Energy
Independence and Security Act of 2007, Pub. L. No. 110-140,
121 Stat. 1492. Congress aimed to "move the United
States toward greater energy independence and security"
and to "increase the production of clean renewable
fuels." 121 Stat. at 1492. The program charges EPA with
requiring "that gasoline sold . . . in the United States
. . . contain [a minimum] volume of renewable fuel."
42 U.S.C. § 7545(o)(2)(A)(i). The statute defines
renewable fuel to mean fuel "produced from renewable
biomass." Id. § 7545(o)(1)(J).
ensure that gasoline sold in the United States meets those
standards, EPA requires refiners (and importers) of gasoline
to include a minimum amount of renewable fuel in their
gasoline. The required annual volumes for each renewable fuel
are prescribed in statutory tables. See id. §
7545(o)(2)(B). For years not covered by the tables, the
statute calls for EPA to set the required volumes "based
on a review of the implementation of the program . . . and an
analysis of [six factors]." Id. §
addition, the statute directs EPA to conduct "periodic
reviews" of the program "[t]o allow for the
appropriate adjustment" of the minimum total volumes for
each renewable fuel. Id. § 7545(o)(11).
Specifically, EPA must periodically review "existing
technologies," "the feasibility of achieving
compliance with the requirements," and "the impacts
of the requirements described in subsection (a)(2)
on each individual and entity described in paragraph
(2)." Id. (emphasis added) (footnote ...