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DOJ, EPA tell Supreme Court not to review 10th Circuit ruling

The Hagstrom Report

The Justice Department on behalf of the Environmental Protection Agency on Tuesday urged the Supreme Court not to review the 10th Circuit Court’s ruling earlier this year that invalidated several small refinery exemptions issued by EPA under the Renewable Fuel Standard.

The DOJ filing was in response to a petition submitted in September by HollyFrontier Corp. and CVR Energy, in which the oil refiners ask the Supreme Court to review the 10th Circuit’s January decision.

The petitioners in the original 10th Circuit Court challenge — the Renewable Fuels Association, National Corn Growers Association, National Farmers Union, and American Coalition for Ethanol — welcomed the government’s brief opposing Supreme Court review of the appeals court decision. RFA, NCGA, NFU and ACE plan to file their own brief with the Supreme Court, echoing the points raised by the Justice Department and adding others in opposing review of the 10th Circuit’s decision.



“We agree with the well-reasoned position of the Justice Department and concur that no further review of the 10th Circuit decision is warranted,” the ethanol coalition said. “The 10th Circuit got it right when it concluded that the temporary small refinery exemptions Congress provided could not be extended if they had previously expired. But the more important and immediate point is that the petition from HollyFrontier and CVR falls far short of the standards the Supreme Court has established for its review of lower court decisions. As underscored by the DOJ brief, the 10th Circuit decision does not conflict with any decision from the Supreme Court or another court of appeals, which is a common prerequisite for Supreme Court review. In addition, the DOJ correctly noted that further review is not warranted because the issue is already the subject of pending litigation in the D.C. Circuit, filed by our four groups and others. Finally, we agree with DOJ that further review would be inappropriate because even if the Supreme Court ruled in the refiners’ favor on this specific issue, it would not change the ultimate outcome of the underlying 10th Circuit decision, since two of the three remaining holdings of that case were unmentioned in the refiners’ petition.”


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