Growth Energy Files Court Intervention in Support of RFS Annual Rules

On July 20, 2022, the Center for Biological Diversity petitioned this Court for review of the final rule issued by the United States Environmental Protection Agency (“EPA”) entitled Renewable Fuel Standard (RFS) Program: RFS Annual Rules, 87 Fed. Reg. 39,600 (July 1, 2022) (“2022 Rule”), which was published in the Federal Register on July 1, 2022. See Pet. for Review, ECF No. 1956112 (D.C. Cir. July 20, 2022). Since then, seven additional petitions for review have been filed challenging the 2022 Rule, and the Court has consolidated those petitions with the petition filed by the Center for Biological Diversity.

Growth Energy anticipates that some of these petitions for review will challenge the 2022 Rule on grounds that, if successful, would adversely affect Growth Energy’s interests. Accordingly, Growth Energy respectfully seeks to intervene in these consolidated cases in support of Respondent EPA in order to protect Growth Energy’s interests.

Growth Energy has contacted counsel for all petitioners and the respondent in these consolidated cases and requested their positions on Growth Energy’s motion to intervene. The Center for Biological Diversity takes no position, but reserves the right to respond. Sinclair Wyoming Refining Company LLC; Sinclair Casper Refining Company LLC; Iogen Corporation; Iogen D3 Biofuels Partners II LLC; American Fuel & Petrochemical Manufacturers; American Refining Group, Inc.; Calumet Montana Refining, LLC; Calumet Shreveport Refining LLC; Ergon Refining, Inc.; Ergonwest Virginia, Inc.; Hunt Refining Company; Par Hawaii Refining, LLC; Placid Refining Company LLC; San Joaquin Refining Co., Inc.; U.S. Oil & Refining Company; Wyoming Refining Company; and The San Antonio Refinery LLC take no position. The U.S. Environmental Protection Agency does not oppose. The remaining petitioners did not respond.

A. The Renewable Fuel Standard (“RFS”) program “requires that
increasing volumes of renewable fuel be introduced into the Nation’s supply of
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transportation fuel each year. Congress enacted those requirements in order to
move the United States toward greater energy independence and security and
increase the production of clean renewable fuels.” Ams. for Clean Energy v. EPA,
864 F.3d 691, 697 (D.C. Cir. 2017) (“ACE”) (quotation marks omitted). The
required volumes are set forth in a statutory table and are specified according to
four “nested” categories: cellulosic biofuel, which includes cellulosic ethanol
(derived from corn); biomass-based diesel (“BBD”); advanced biofuel, which
contains cellulosic biofuel, BBD, and other advanced biofuels; and total renewable
fuel, which contains advanced biofuel and conventional corn-starch ethanol. See
42 U.S.C. § 7545(o)(2)(A)(i), (B)(i). For each category, the obligation that
obligated parties must meet is expressed as an EPA-determined percentage
reflecting (roughly) the required volume divided by the projected nationwide
transportation-fuel consumption for a given year. Nat’l Petrochem. & Refiners
Ass’n v. EPA, 630 F.3d 145, 148 (D.C. Cir. 2010) (“NPRA”);
§ 7545(o)(3)(B)(ii)(II).
Congress provided EPA with the authority to “reduc[e]” the volume
requirements set forth in the statutory table for a given calendar year, but only “in
limited circumstances” specified in the statute’s waiver provisions.
§ 7545(o)(7)(A), (D); NPRA, 630 F.3d at 158. For cellulosic biofuel, EPA has the
specific power to reduce the applicable cellulosic volume requirement to the
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“projected volume of cellulosic biofuel production.” § 7545(o)(7)(D)(i). If EPA
exercises that cellulosic waiver power, it may flow the waiver through the nested
standards, i.e., reduce the advanced and total volume requirements, “by the same or
a lesser volume.” ACE, 864 F.3d at 731 (quotation marks omitted) (quoting
§ 7545(o)(7)(D)(i)). EPA also has a separate “general” waiver authority, whereby
it may reduce any volume requirement “in whole or in part” if “there is an
inadequate domestic supply” of renewable fuel or if “implementation of the
requirement would severely harm the economy or environment.” § 7545(o)(7)(A).
“[F]or purposes of examining whether the supply of renewable fuel is adequate, the
‘inadequate domestic supply’ provision authorizes EPA to consider only supplyside factors—such as production and import capacity—affecting the available
supply of renewable fuel, . . . not . . . demand-side factors affecting the demand for
renewable fuel.” ACE, 864 F.3d at 710.
In addition to its authority to reduce the volume in the statutory table for a
particular year through a cellulosic or general waiver, EPA also has authority to
modify the statutorily set volumes for multiple years at a time under the statute’s
“reset” provision. Under that provision, if EPA waives a sufficient amount of the
required volumes for a single year or for two years consecutively, EPA must
“modif[y]” the statutory volumes “for all years following the final year to which
the waiver applies,” based on specified processes, criteria, and standards.
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§ 7545(o)(7)(F); see ACE, 864 F.3d at 712. This reset provision does not apply to
BBD because the statutory tables for BBD do not extend past 2012. See
§ 7545(o)(2)(B)(i)(IV). However, the statute separately authorizes EPA to set
post-2012 required volumes for BBD in the first instance after considering the
same factors applicable to EPA’s reset authority. See id. § 7545(o)(2)(B)(ii).
B. In the 2022 Rule, EPA took several actions under the RFS program.
Among other things, in the exercise of its waiver, reset, and other regulatory
authorities, EPA (1) established the applicable volumes for cellulosic biofuel,
advanced biofuel, and total renewable fuel for 2021 and 2022, as well as the BBD
volume for 2022; (2) modified the applicable volumes it previously established for
cellulosic biofuel, advanced biofuel, and total renewable fuel for 2020; (3) revised
the percentage standards for cellulosic biofuel, BBD, advanced biofuel, and total
renewable fuel in 2020, and established new percentage standards for 2021 and
2022; and (4) addressed the remand by this Court in ACE by establishing a
supplemental volume of 250 million gallons for 2022. See 87 Fed. Reg. at 39,601.
Given the statements of issues and motion for summary vacatur that some
petitioners have already filed, as well as arguments petitioners raised on the
proposed 2022 Rule and in litigation challenging prior RFS annual rules, Growth Energy
expects that petitioners will challenge the 2022 Rule on grounds that will seek to
reduce the required volumes or percentage standards. For example, the Center for
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Biological Diversity has already moved to summarily vacate the 2022 Rule on the
ground that increased demand for biofuels resulting from higher volumes or
percentage standards purportedly will harm ecosystems or species in violation of
the Endangered Species Act. See ECF No. 1966328 (D.C. Cir. Sept. 27, 2022).
Similarly, the Sinclair Wyoming Refining Company and the Sinclair Casper
Refining Company may challenge the 250-million-gallon supplemental volume
EPA established to address this Court’s remand in ACE. And the American Fuel &
Petrochemical Manufacturers may challenge the percentage standards established
for obligated parties as too high on various grounds.
Growth Energy seeks to intervene in these consolidated cases to protect its
substantial interests in the 2022 Rule.1
I. Federal Rule of Appellate Procedure 15(d) and Circuit Rule 15(b)
establish procedural requirements for intervention on appeal, but not substantive
Rather, this Court has “held that intervention in the court of appeals is
1 See D.C. Cir. R. 15(b) (“A motion to intervene in a case before this court
concerning direct review of an agency action will be deemed a motion to intervene
in all cases before this court involving the same agency action or order, including
later filed cases, unless the moving party specifically states otherwise, and an order
granting such motion has the effect of granting intervention in all such cases.”).
This motion satisfies those procedural requirements. The motion is timely, it is
being served on all parties to the consolidated cases, and the discussion in the text
constitutes “a concise statement of [Growth Energy’s] interest . . . and the grounds
for intervention.” Fed. R. App. P. 15(d).
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governed by the same standards as in the district court.” Mass. Sch. of Law at
Andover, Inc. v. United States, 118 F.3d 776, 779 (D.C. Cir. 1997) (emphasis
omitted). Thus, a party has a right to intervene if it “claims an interest relating to
the . . . transaction that is the subject of the action, and is so situated that disposing
of the action may as a practical matter impair or impede the movant’s ability to
protect its interest, unless existing parties adequately represent that interest.” Fed.
R. Civ. P. 24(a)(2); see also Deutsche Bank Nat’l Tr. Co. v. FDIC, 717 F.3d 189,
192 (D.C. Cir. 2013). Growth Energy satisfies this standard.3
A. EPA has already acknowledged that among the “[e]ntities potentially
affected by this final rule are those involved with the production, distribution, and
sale of . . . renewable fuels such as ethanol.” 87 Fed. Reg. at 39,600. That
includes Growth Energy, both directly and through its members.
Growth Energy is a national trade association dedicated to promoting the
commercial production and use of renewable fuels that are the subject of the RFS
volume requirements, particularly conventional and cellulosic ethanol. Growth
Energy’s membership includes producers of conventional and cellulosic ethanol.
See Growth Energy, Our Members, (last visited
3 A fortiori, Growth Energy also satisfies the standard for permissive intervention,
which requires only a showing that the proposed intervenor has “a claim or defense
that shares with the main action a common question of law or fact.” Fed. R. Civ. P.
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Sep. 29, 2022). Growth Energy submitted to EPA a lengthy comment letter on the
proposed 2022 Rule. See Growth Energy Comments on EPA’s Renewable Fuel
Standard (RFS) Program: RFS Annual Rules, EPA-HQ-OAR-2021-0324- 0521
(Feb. 4, 2022). Indeed, the timing of EPA’s promulgation of the 2022 Rule was
governed by a consent decree entered in litigation brought against EPA by Growth
Energy (based on EPA’s failure to establish renewable fuel obligations for 2021
and 2022 by the statutory deadlines). See Consent Decree, Growth Energy v.
Regan, No. 1:22-cv-00347-RCL, ECF No. 10 (Apr. 22, 2022); Notice of
Termination of Consent Decree, Growth Energy v. Regan, No. 1:22-cv-00347-
RCL, ECF No. 12 (July 26, 2022).
Because the volumes and percentage standards mandate the national level of
demand for renewable fuels, see ACE, 864 F.3d at 705; Monroe Energy, LLC v.
EPA, 750 F.3d 909, 917 (D.C. Cir. 2014), any reduction in the final percentage
standards resulting from this litigation would reduce demand for the products that
Growth Energy’s members develop and sell, harming their businesses and their
substantial investments in facilities, materials, and technologies used in the
production of renewable fuel. Furthermore, those harms could recur and be
compounded in the future because of EPA’s obligation to issue percentage
standards annually and EPA’s practice of determining future standards partially by
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reference to prior performance. As a result, this suit may afford Growth Energy its
only opportunity to avoid such harms. See 42 U.S.C. § 7607(b)(1).
In light of these interests, Growth Energy has actively participated as
petitioner and intervenor in prior actions in this Court involving challenges to
EPA’s RFS regulations, including rules setting percentage standards in prior years.
See, e.g., Order, RFS Power Coalition v. EPA, No. 20-1046, ECF No. 1843937
(D.C. Cir. May 22, 2020) (granting Growth Energy’s motion to intervene); accord
Order, Growth Energy v. EPA, No. 19-1023, ECF No. 1784196 (D.C. Cir. Apr. 23,
2019); Order, Am. Fuel & Petrochem. Mfrs. v. EPA, No. 17-1258, ECF No.
1725309 (D.C. Cir. Apr. 5, 2018); Order, Alon Refin. Krotz Springs, Inc. v. EPA,
No. 16- 1052, ECF No. 1722824 (Mar. 19, 2018); Order, Coffeyville Res. Refin. &
Mktg v. EPA, No. 17-1044, ECF No. 1706266 (D.C. Cir. Nov. 28, 2017); Order,
Ams. for Clean Energy v. EPA, No. 16-1005, ECF No. 1611965 (D.C. Cir. May 5,
2016); Order, Monroe Energy, LLC v. EPA, No. 13-1265, ECF No. 1468501 (D.C.
Cir. Dec. 2, 2013).
B. Growth Energy’s interests would not be adequately represented by
another party in this case. The requirement that there be no other adequate
representative is “low,” and precludes intervention only if “it is clear that the party
will provide adequate representation.” Crossroads Grassroots Pol’y Strategies v.
FEC, 788 F.3d 312, 321 (D.C. Cir. 2015) (quotation marks omitted). Although
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Growth Energy seeks to intervene in support of EPA, EPA—as a government
agency—cannot adequately represent the specific interests of private commercial
enterprises. See Fund for Animals, Inc. v. Norton, 322 F.3d 728, 736–37 (D.C.
Cir. 2003); Crossroads, 788 F.3d at 321; Nat. Res. Def. Council v. Costle, 561 F.2d
904, 912–13 (D.C. Cir. 1977). In fact, EPA’s defense of the 2022 Rule here could
be in tension with the defense that Growth Energy would advance in some
respects. See Crossroads, 788 F.3d at 321 (agency did not adequately represent
private party even though there was “general alignment” between their positions).
Only a private entity like Growth Energy can adequately represent the ethanol
industry in this case.
II. This Court has also said that a proposed intervenor supporting a
respondent or defendant must establish Article III standing. See Deutsche Bank,
717 F.3d at 193. Any such requirement is unsound and contrary to Supreme
Court precedent because standing is necessary only for a party to invoke a court’s
jurisdiction, and a defensive intervenor, like the defendant or respondent it
supports, does not invoke the court’s jurisdiction. See Va. House of Delegates v.
Bethune-Hill, 139 S. Ct. 1945, 1951 (2019) (intervenor supporting defendants need
not show standing because it is not invoking court’s jurisdiction); DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006); Clapper v. Amnesty Int’l USA, 568
U.S. 398, 410–11 (2013); see also Town of Chester, N.Y. v. Laroe Ests., Inc., 137
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S. Ct. 1645, 1650–51 (2017). Other circuits have correctly held that defensive
intervenors need not establish standing. See, e.g., King v. Governor of New Jersey,
767 F.3d 216, 245–46 (3d Cir. 2014), abrogated in part on other grounds by Nat’l
Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361 (2018). Moreover, even if
defensive standing were required, EPA would have standing here, and EPA’s
standing would suffice for Growth Energy, since Growth Energy does not “pursue
relief that is broader than or different from” that pursued by EPA. Little Sisters of
the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2379 n.6
(2020) (citing Town of Chester, 137 S. Ct. at 1650–51).4
In any event, if any standing requirement applies here, it is satisfied. An
association has Article III standing to sue on behalf of its members when: “(a) its
members would otherwise have standing to sue in their own right; (b) the interests
it seeks to protect are germane to the organization’s purpose; and (c) neither the
claim asserted nor the relief requested requires the participation of individual
members in the lawsuit.” Military Toxics Project v. EPA, 146 F.3d 948, 953–54
(D.C. Cir. 1998). And to have standing in its own right, an association member
Should the Court consider standing dispositive of Growth Energy’s motion,
Growth Energy respectfully requests that the Court overturn Deutsche Bank and
similar precedent through the Irons procedure. See Irons v. Diamond, 670 F.2d
265, 267-68 & n.11 (D.C. Cir. 1981).
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must show “injury-in-fact, causation, and redressability.” Deutsche Bank, 717 F.3d
at 193.5
For the same reasons that Growth Energy has a substantial interest that could
be affected adversely by this litigation, some of its members will suffer a
cognizable injury-in-fact if the 2022 Rule is set aside on any ground that would
result in reduced volume requirements. See Roeder v. Islamic Republic of Iran,
333 F.3d 228, 233 (D.C. Cir. 2003) (“[A]ny person who satisfies Rule 24(a) will
also meet Article III’s standing requirement.”). For example, lowering the volume
requirements would cause a reduction in domestic demand for renewable fuels,
including corn ethanol. That would clearly hurt Growth Energy members’ bottom
lines and impair the future value of their businesses and investments. See
Crossroads, 788 F.3d at 317 (“Our cases have generally found a sufficient injury in
fact where a party benefits from agency action, the action is then challenged in
court, and an unfavorable decision would remove the party’s benefit.”); accord
Fund for Animals, 322 F.3d at 733–34 (D.C. Cir. 2003); Military Toxics, 146 F.3d
at 954; cf. Sherley v. Sebelius, 610 F.3d 69, 72 (D.C. Cir. 2010) (“[E]conomic
actors suffer [an] injury in fact when agencies lift regulatory restrictions on their
competitors or otherwise allow increased competition against them.” (quotation
It suffices for a single member of Growth Energy to have standing. Sierra Club v.
EPA, 292 F.3d 895, 898 (D.C. Cir. 2002); Military Toxics Project, 146 F.3d at 954.
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marks omitted)). This injury could be redressed simply rejecting challenges that
would lower the volume requirements.
Moreover, the interests that Growth Energy seeks to protect in this litigation
are germane—indeed, vital—to its purposes and membership, and “mere
pertinence between litigation subject and organizational purpose is sufficient.”
Nat’l Lime Ass’n v. EPA, 233 F.3d 625, 636 (D.C. Cir. 2000). And finally, the
validity of the relevant determinations reflected in the 2022 Rule can be
adjudicated without the participation of any of its individual members.
For the foregoing reasons, the Court should grant Growth Energy’s motion
to intervene.