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Valero Energy Corp. v. Environmental Protection Agency

United States Court of Appeals, District of Columbia Circuit

June 25, 2019

Valero Energy Corporation, Petitioner
v.
Environmental Protection Agency, Respondent

          Argued November 8, 2018

          On Petition for Review of an Action of the United States Environmental Protection Agency

          Samara 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 appearances.

          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.

          OPINION

          Srinivasan Circuit Judge

         The 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.

         In an 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.

         I.

         A.

         In 2005 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).

         To 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. § 7545(o)(2)(B)(ii).

         In 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 ...


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