ACE Seeks Assurance EPA Administrator Wheeler is Complying with the Law on Any Final RFS Waiver Decisions

Posted on 01/12/2021

Today, American Coalition for Ethanol (ACE) CEO Brian Jennings sent a letter to the Environmental Protection Agency (EPA) Inspector General seeking assurance that EPA Administrator Andrew Wheeler's potential last-minute action to grant a significant number of petitions for small refinery exemptions (SREs) under the Renewable Fuel Standard complies with federal law. This action follows multiple media outlets reporting EPA is expected to grant a significant number of pending waivers on their way out the door to the private sector.

The letter points out that EPA's use of SREs to undermine the integrity of the RFS for the economic benefit of oil refiners has been subject to ongoing litigation, most notably the Tenth Circuit Court case. The letter makes specific reference to a Nov. 2, 2020 response Administrator Wheeler provided to a question about when EPA would act on pending SRE petitions where he stated that, 'I think it would be inappropriate for me to either grant or deny them [SREs] until that litigation [Tenth Circuit] has completely run its course.'

Last week, the Supreme Court agreed to hear the refiners' appeal of the Tenth Circuit's ruling, with arguments scheduled for this spring and a decision likely by summer. Without any substantive change in circumstance surrounding whether to grant or deny these waivers and the Supreme Court's decision to hear the appeal, the letter to the Inspector General states that 'Given Wheeler's prior explanation of waiting until the Supreme Court has decided, it is perplexing why he appears to be rapidly reversing course. Therefore, we encourage you to ensure that all communications from Administrator Wheeler and any other correspondence of President Trump's political appointees about the pending SRE waiver petitions be preserved. This should include communications among Trump appointees and EPA career staff with trade groups and law firms who represent oil refineries with waiver petitions pending, as well as with officials or lobbyists of these companies directly.'

The letter concludes outlining that 'This information, in part, is needed to ensure that dispensation of these waiver petitions comply with federal laws regarding political appointees' roles in federal acts affecting a personal financial interest.'