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American Fuel & Petrochemical Manufacturers v. Environmental Protection Agency

United States Court of Appeals, District of Columbia Circuit

September 6, 2019

American Fuel & Petrochemical Manufacturers, Petitioner
v.
Environmental Protection Agency, Respondent Small Retailers Coalition, et al., Intervenors

          Argued February 20, 2019

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

          Thomas A. Lorenzen and Samara L. Kline argued the causes for Obligated Petitioners. Suzanne Murray argued the cause for petitioner-intervenor Small Retailers Coalition. With them on the briefs were Julie R. Domike, Michael J. Scanlon, Richard S. Moskowitz, Robert J. Meyers, Elizabeth B. Dawson, Megan H. Berge, Lisa M. Jaeger, Brittany M. Pemberton, and Clara Poffenberger. Evan A. Young entered an appearance.

          Bryan M. Killian argued the cause for petitioner National Biodiesel Board. With him on the briefs was Douglas A. Hastings. Devorah Ancel argued the cause for Environmental Petitioners. With her on the briefs was Eric Huber.

          Benjamin R. Carlisle, Attorney, and Michael R. Eitel, Senior Trial Attorney, U.S. Department of Justice, argued the causes for respondent. With them on the brief were Jeffrey H. Wood, Acting Assistant Attorney General, Jonathan D. Brightbill, Deputy Assistant Attorney General, and David P.W. Orlin, Attorney, U.S. Environmental Protection Agency.

          Thomas Allen Lorenzen argued the cause for intervenors in support of respondent responding to National Biodiesel Board. With him on the brief were Robert A. Long Jr., Kevin King, Stacy Linden, Richard S. Moskowitz, Robert J. Meyers, and Elizabeth B. Dawson. David Y. Chung and John P. Wagner entered appearances.

          Seth P. Waxman, David M. Lehn, Saurabh Sanghvi, Claire H. Chung, Robert A. Long, Jr., Kevin King, Matthew W. Morrison, Bryan M. Stockton, Bryan M. Killian, and Douglas A. Hastings were on the brief for intervenors Growth Energy, et al. in support of respondent.

          Matthew W. Morrison, Bryan M. Stockman, Seth P. Waxman, David M. Lehn, Saurabh Sanghvi, Claire H. Chung, Bryan M. Killian, and Douglas A. Hastings were on the brief for intervenors Renewable Fuels Association, et al. in support of respondent.

          Before: Henderson, Tatel, and Griffith, Circuit Judges.

          OPINION

          PER CURIAM

         The Clean Air Act's Renewable Fuel Program mandates that certain amounts of renewable fuel must be introduced into the U.S. fuel supply each year. In late 2017, the EPA promulgated its final 2018 Rule, which, as in previous years, established overall targets for the fuel market and imposed individual compliance obligations on fuel refineries and importers. These consolidated cases concern various challenges to the 2018 Rule. Several petitioners maintain it is too strict, others allege it is too lax, and still others argue that the EPA failed to follow proper procedures in its promulgation. We conclude that all these challenges lack merit, except for one: that the EPA violated its obligations under the Endangered Species Act by failing to determine whether the 2018 Rule may affect endangered species or critical habitat. We therefore grant the petition for review filed by the Gulf Restoration Network and Sierra Club and remand the 2018 Rule without vacatur for the EPA to comply with the Endangered Species Act. We deny all other petitions for review.

         I. Background

         A. The Renewable Fuel Program

         Enacted in 2005 and amended in 2007, the Renewable Fuel Program (the "Program" or "RFS Program"), alternatively called the Renewable Fuel Standard, was designed "[t]o move the United States toward greater energy independence and security" and "to increase the production of clean renewable fuels." Energy Independence and Security Act of 2007, Pub. L. No. 110-140, pmbl., 121 Stat. 1492, 1492; see also id. §§ 201- 210 (amending the Program); Energy Policy Act of 2005, Pub. L. No. 109-58, § 1501, 119 Stat. 594, 1067-76 (enacting the Program). To accomplish these goals, the Program regulates suppliers through "applicable volume[s]"-mandatory and annually increasing quantities of renewable fuels that must be "introduced into commerce in the United States" each year- and tasks the EPA Administrator with "ensur[ing]" that those annual targets are met. 42 U.S.C. § 7545(o)(2)(A)(i). As we explained in Americans for Clean Energy v. EPA, "[b]y requiring upstream market participants . . . to introduce increasing volumes of renewable fuel into the transportation fuel supply, Congress intended the Renewable Fuel Program to be a 'market forcing policy' that would create 'demand pressure to increase consumption' of renewable fuel." 864 F.3d 691, 705 (D.C. Cir. 2017) (first quoting Renewable Fuel Standard Program: Standards for 2014, 2015, and 2016 and Biomass-Based Diesel Volume for 2017, 80 Fed. Reg. 77, 420, 77, 423 (Dec. 14, 2015); then quoting Monroe Energy, LLC v. EPA, 750 F.3d 909, 917 (D.C. Cir. 2014)).

         The Program specifies annual fuel-volume requirements for four overlapping categories of fuel. The first and broadest category, "renewable fuel," includes any "fuel that is produced from renewable biomass and that is used to replace or reduce the quantity of fossil fuel present in" either "a transportation fuel," 42 U.S.C. § 7545(o)(1)(J), or "home heating oil or jet fuel," id. § 7545(o)(1)(A); see also Regulation of Fuels and Fuel Additives: Changes to Renewable Fuel Standard Program, 75 Fed. Reg. 14, 670, 14, 687 (Mar. 26, 2010) (including "home heating oil" and "jet fuel" within the definition of "renewable fuel"). Next are "advanced biofuel[s]," a subset of the renewable-fuel category defined as any "renewable fuel, other than ethanol derived from corn starch, that has lifecycle greenhouse gas emissions . . . at least 50 percent less than" "the average lifecycle greenhouse gas emissions . . . for gasoline or diesel" as of 2005. 42 U.S.C. § 7545(o)(1)(B)(i), (C). Lastly, of the fuels falling under the advanced-biofuel umbrella, the Program singles out two in particular: "cellulosic biofuel," a fuel derived from the fibrous parts of plants, see id. § 7545(o)(1)(E), and "biomass-based diesel," a renewable substitute for conventional diesel, see id. §§ 7545(o)(1)(D), 13220(f). Because the definitions of these four fuel categories are "nested," so, too, are their applicable volumes. Ams. for Clean Energy, 864 F.3d at 731. As depicted below, the Program will double- or even triple-count the more specialized fuels, such that one gallon of advanced biofuel simultaneously counts as one gallon of renewable fuel, and one gallon of either cellulosic biofuel or biomass-based diesel also counts as one gallon of both advanced biofuel and renewable fuel.

         (Image Omitted)

         The Program lists calendar years and corresponding applicable volumes for each type of fuel. These tables run through 2022 for renewable fuel, advanced biofuel, and cellulosic biofuel; for 2018, the statute mandates applicable volumes of 26, 11, and 7 billion gallons, respectively. See 42 U.S.C. § 7545(o)(2)(B)(i)(I)-(III). In contrast, the Program provides applicable volumes for biomass-based diesel through only 2012. See id. § 7545(o)(2)(B)(i)(IV). For all later years, the statute sets a floor of 1 billion gallons, see id. § 7545(o)(B)(i)(IV), (v), and directs the Administrator to establish, "no later than 14 months" before the relevant year, an applicable volume "based on a review of the implementation of the program during" previous years and "an analysis of" six other broad factors such as the fuel's effect on "the environment," "energy security," and "cost to consumers," id. § 7545(o)(B)(ii).

         Although the statutory tables initially appear to admit no exception, their applicable volumes in fact provide only starting points. Under certain circumstances, the Program grants the Administrator authority to exercise so-called waivers to reduce applicable volumes below statutory levels. Three waivers are relevant to this case.

         The first waiver is mandatory. The Program requires that if in any year "the projected volume of cellulosic biofuel production is less than the minimum applicable volume" set by statute, then "the Administrator shall reduce the applicable volume of cellulosic biofuel . . . to the projected volume available during that calendar year." Id. § 7545(o)(7)(D)(i). Put simply, regardless of the applicable volume Congress established in the Program, the EPA may require by regulation no more cellulosic biofuel than the market is projected to provide in any given year.

         The second waiver flows from the first. For any year in which the EPA reduces the applicable volume of cellulosic biofuel based on a projected shortfall, "the Administrator may also reduce the applicable volume of renewable fuel and advanced biofuels . . . by the same or a lesser volume." Id. Unlike its mandatory cousin, this "cellulosic waiver" is discretionary: if cellulosic biofuel is projected to underperform statutory levels, the Administrator may reduce renewable fuel and advanced biofuel volumes by the entire cellulosic deficit, by some percentage of the shortfall, or by nothing at all. See id.; see also Regulation of Fuels and Fuel Additives: 2013 Renewable Fuel Standards, 78 Fed. Reg. 49, 794, 49, 810 (Aug. 15, 2013) (interpreting the cellulosic waiver provision "as authorizing [the] EPA to reduce both total renewable fuel and advanced biofuel, by the same amounts, if [the] EPA reduces the volume of cellulosic biofuel"). Because cellulosic biofuel is nested within advanced biofuel, if the Administrator exercises anything less than a full cellulosic waiver, other advanced biofuels will need to make up for the difference.

         The last waiver, the so-called general waiver, is also discretionary. It permits the Administrator to "reduc[e] the national quantity of renewable fuel required" by the Program "based on a determination" that any of three circumstances exist: first, "that implementation of the requirement would severely harm the economy . . . of a State, a region, or the United States," 42 U.S.C. § 7545(o)(7)(A)(i); second, "that implementation of the requirement would severely harm the . . . environment of a State, a region, or the United States," id.; or third, "that there is an inadequate domestic supply," id. § 7545(o)(7)(A)(ii). The Administrator may exercise the general waiver in response to a petition by a state or regulated party or "on his own motion." Id. § 7545(o)(7)(A).

         After exercising any waivers and finalizing an applicable volume for each type of fuel, the EPA must by November 30 of each year calculate and promulgate "renewable fuel obligation[s] that" will "ensure[] that the [Program's] requirements . . . are met" in the upcoming year. Id. § 7545(o)(3)(B)(i). In broad strokes, this task requires the EPA to identify the entities responsible for collectively achieving applicable volumes, quantify each entity's individual obligation, and ensure those entities' successful compliance.

         To begin with, there is the threshold question of who, exactly, must satisfy renewable fuel obligations-that is, who are the "obligated parties"? Although the statute states that "[t]he renewable fuel obligation determined for a calendar year . . . shall . . . be applicable to refineries, blenders, and importers, as appropriate," id. § 7545(o)(3)(B)(ii)(I), the EPA has since the Program's inception declined to include blenders-defined as "part[ies] that simply blend[] renewable fuel into gasoline or diesel fuel," 40 C.F.R. § 80.1406(a)(1)- within the definition of "obligated party," see Regulation of Fuels and Fuel Additives: Renewable Fuel Standard Program, 72 Fed. Reg. 23, 900, 23, 924 (May 1, 2007) (designating obligated parties); Regulation of Fuels and Fuel Additives: Changes to Renewable Fuel Standard Program, 75 Fed. Reg. at 14, 721-22 (same). Instead, the EPA defines an obligated party as "any refiner that produces gasoline or diesel fuel within the 48 contiguous states or Hawaii, or any importer that imports gasoline or diesel fuel into the 48 contiguous states or Hawaii during a compliance period." 40 C.F.R. § 80.1406(a)(1). The Program does, however, permit "small refiner[ies]" to receive exemptions from renewable fuel obligations if they demonstrate that compliance would inflict "disproportionate economic hardship." 42 U.S.C. § 7545(o)(9)(B).

         Next, each year the EPA must transform its aggregate, fuel-sector-wide applicable volumes into individual compliance obligations that sum to the requisite whole. To do this, the Program instructs the EPA to translate the applicable volumes into "percentage[s] of transportation fuel sold or introduced into commerce in the United States." Id. § 7545(o)(3)(B)(ii)(II). By dividing the applicable volumes for each fuel type by an estimate of the total gasoline and diesel volume that will be used in the coming year (subject to some adjustments), the EPA generates "percentage standards" which then "inform each obligated party of how much renewable fuel it must introduce into U.S. commerce based on the volumes of fossil-based gasoline or diesel it imports or produces." Ams. for Clean Energy, 864 F.3d at 699; see also 40 C.F.R. § 80.1405(c) (setting out the percentage-standard formula). In other words, the EPA estimates what percentage of the overall fuel supply each renewable-fuel type should constitute and then requires each obligated party to replicate those percentages on an individual basis.

         Although the nuances of the percentage standard are mostly beyond the scope of this case, one feature requires mention. When calculating percentage standards for any given year, the EPA accounts for any small refineries that have received exemptions by requiring non-exempt obligated parties to produce proportionally more. See Regulation of Fuels and Fuel Additives: 2011 Renewable Fuel Standards, 75 Fed. Reg. 76, 790, 76, 805 (Dec. 9, 2010) (explaining that small-refinery exemptions "result in a proportionally higher percentage standard for remaining obligated parties"). The problem is that while the EPA must promulgate annual percentage standards by November 30 each year, refineries may petition for an exemption "at any time," 42 U.S.C. § 7545(o)(9)(B)(i), and the EPA has no mechanism to adjust renewable fuel obligations to account for exemptions granted after each year's percentage standards are finalized. As a result, because the EPA cannot ensure that non-exempt obligated parties compensate for the renewable-fuel shortfall created by belated exemptions, those gallons of renewable fuel simply go unproduced.

         Finally, after the obligated parties have been identified and their percentage standards have been set, there remains the matter of compliance. The Program does not require each obligated party to produce precisely the right mix of fuel itself. See id. § 7545(o)(5) (directing the EPA to establish a "[c]redit program"). Instead, for every gallon of renewable fuel entering the U.S. market, producers and importers may generate a set of "Renewable Identification Numbers" (RINs). See 40 C.F.R. §§ 80.1426, 80.1429(b) (describing how RINs are "generated" and then "separated" from their fuel); Ams. for Clean Energy, 864 F.3d at 699 (same). Each year, obligated parties must generate or purchase enough RINs to meet their renewable fuel obligations, which the obligated parties then satisfy by "retir[ing]" RINs at an annual compliance demonstration. 40 C.F.R. § 80.1427. To prevent fuel that ultimately leaves the U.S. market from satisfying obligated parties' renewable fuel obligations, the EPA also requires exporters to retire any RINs (or an equivalent number of RINs) that were generated by exported fuel. See 40 C.F.R. § 80.1430 (listing requirements for renewable-fuel exporters). An obligated party lacking enough RINs may, under certain circumstances, carry forward a deficit, while an obligated party possessing excess RINs may save those RINs for the following year. See 42 U.S.C. § 7545(o)(5)(B), (D) (addressing the transfer of RINs and the ability to carry forward a RIN deficit); 40 C.F.R. § 80.1427(b) (addressing "[d]eficit carryovers"); id. § 80.1428(c) (addressing "RIN expiration").

         B. The 2018 Rule

         To fulfill its annual rulemaking obligation under 42 U.S.C. section 7545(o)(3)(B)(i), the EPA proposed a rule in July 2017 to set renewable fuel applicable volumes and percentage standards for 2018 and a biomass-based diesel applicable volume for 2019. Renewable Fuel Standard Program: Standards for 2018 and Biomass-Based Diesel Volume for 2019 ("Proposed Rule"), 82 Fed. Reg. 34, 206 (proposed July 21, 2017). The Proposed Rule explained that "[r]eal-world challenges, such as the slower-than-expected development of the cellulosic biofuel industry, . . . have made the volume targets established by Congress for 2018 beyond reach for all fuel categories other than [biomass-based diesel]." Id. at 34, 207. The EPA thus proposed reducing the cellulosic biofuel applicable volume to match the projected volume of cellulosic biofuel available in 2018 and exercising its discretionary cellulosic waiver authority to reduce the applicable volumes for advanced biofuel and total renewable fuel a corresponding amount. Id. at 34, 208-10. It determined that the market for biomass-based diesel, however, outproduced the minimum requirements of the Program and therefore proposed maintaining for 2019 its applicable volume for biomass-based diesel set for 2018. Id. at 34, 210-11.

         The Proposed Rule further solicited comment on three other issues. First, although the EPA initially concluded that it should not exercise its general waiver authority to reduce applicable volumes further, it solicited comment on whether it should exercise that authority due to either severe economic harm or inadequate domestic supply. Id. at 34, 213. Second, it solicited comment on how it should account for small refinery exemptions when translating the 2018 applicable volumes into percentage standards. Id. at 34, 241-42. And third, it solicited comment on the current RIN trading market. Id. at 34, 211. It clarified, however, that it was "not soliciting comment on any aspect of the current RFS regulatory program other than those specifically related to RIN trading . . . and the proposed annual standards for 2018 and biomass-based diesel applicable volume for 2019." Id.

         During the comment period, the EPA published supplemental information regarding its proposal and requested further comment on aspects of the Proposed Rule. See Renewable Fuel Standard Program: Standards for 2018 and Biomass-Based Diesel Volume for 2019; Availability of Supplemental Information and Request for Further Comment ("Supplemental Information"), 82 Fed. Reg. 46, 174 (Oct. 4, 2017). In particular, in response to this court's intervening decision in Americans for Clean Energy, 864 F.3d 691, the EPA solicited comment on the meaning of the phrases "inadequate domestic supply" and "severe economic harm" in the general waiver provision, 42 U.S.C. section 7545(o)(7)(A). See Supplemental Information, 82 Fed. Reg. at 46, 177-79.

         Over 235, 000 comments later, the EPA promulgated its final 2018 Rule in December 2017. See Renewable Fuel Standard Program: Standards for 2018 and Biomass-Based Diesel Volume for 2019 ("2018 Rule"), 82 Fed. Reg. 58, 486, 58, 487 (Dec. 12, 2017). The 2018 Rule tracked the Proposed Rule with only slight modifications. The EPA reduced the applicable volume for cellulosic biofuel to match the agency's updated projection of the amount of cellulosic biofuel that would be produced in 2018. Id. at 58, 487. It also exercised its full cellulosic waiver authority to reduce the applicable volumes for advanced biofuel and renewable fuel by an equal amount. Id. And as anticipated in the Proposed Rule, the EPA declined to exercise its general waiver authority to reduce applicable volumes further due to inadequate domestic supply or severe economic harm. Id. The EPA adopted the following final applicable volumes and percentage standards:

         2018 Rule: Applicable Volumes & Percentage Standards

Applicable Volume (billions of gallons)

Percentage Standard

Cellulosic Biofuel

00.288 0

0.159%

Biomass-Based Diesel

02.1 (2019)

01.74%

Advanced Biofuel

04.29

02.37%

Total Renewable Fuel

19.29

10.67%

Id. at 58, 487, 58, 491. The EPA further explained that it calculated the percentage standards without prospectively adjusting for potential small refinery exemptions and that it did not intend to adjust retroactively the fuel percentage standards to account for exemptions it subsequently granted. Id. at 58, 523. The EPA also declined to address as "beyond the scope of this rulemaking" comments asking it to reconsider its RIN policy for renewable fuel exports and its definition of obligated parties. Assessment and Standards Div., Office of Transp. and Air Quality, EPA, EPA-420-R-17-007, Renewable Fuel Standard Program - Standards for 2018 and Biomass-Based Diesel Volume for 2019: Response to Comments 223 (December 2017) ("Response to Comments"), Joint Appendix (J.A.) 1446.

         C. Procedural History

         After the EPA promulgated its final rule, four groups of interested parties petitioned for review in this court. American Fuel & Petrochemical Manufacturers, a national trade association of U.S. refineries and petrochemical manufacturers, and Valero Energy Corporation, a Texas-based energy company that refines transportation fuels, produces biofuels, and sells them in the United States (together, the "Obligated Parties"), both filed petitions for review challenging the 2018 Rule as setting applicable volumes and percentage standards too high. On the other hand, the National Biodiesel Board, a biodiesel industry trade association, petitioned for review of the 2018 Rule on the ground that the Rule set applicable volumes and percentage standards too low. Independently, the Sierra Club and Gulf Restoration Network, two nonprofit environmental groups (together, the "Environmental Petitioners"), filed a joint petition for review of the 2018 Rule, claiming that the EPA violated the Endangered Species Act, 16 U.S.C. §§ 1531-1544, by failing to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service regarding whether the 2018 Rule would adversely affect threatened or endangered species. Several other parties intervened, including the Small Retailers Coalition, a national trade association of small gasoline and diesel retailers, which intervened on behalf of the Obligated Parties and now argues that the EPA violated the Regulatory Flexibility Act, 5 U.S.C. §§ 601-612, by failing to assess the 2018 Rule's potential effects on small fuel retailers.

         While the petitions before us were pending, another panel of this court resolved several petitions challenging the EPA's final rule setting applicable volumes and percentage standards for 2017 and the applicable volume for biomass-based diesel for 2018. See Alon Ref. Krotz Springs, Inc. v. EPA, No. 16-1052, slip op. at 6-7 (D.C. Cir. Aug. 30, 2019) (deciding related case Coffeyville Res. Ref. & Mktg., LLC v. EPA, No. 17-1044 (D.C. Cir. filed Feb. 9, 2017)).

         II. Jurisdiction and Standards of Review

         We have jurisdiction of a timely petition for review of the EPA's regulations implementing the Program. 42 U.S.C. § 7607(b)(1). We may reverse the EPA's actions under the Program if we find them to be "arbitrary, capricious, [or] an abuse of discretion." Id. § 7607(d)(9)(A). We will sustain the EPA's actions, however, so long as the agency "consider[ed] all of the relevant factors and demonstrate[d] a reasonable connection between the facts on the record and the resulting policy choice." Sierra Club v. Costle, 657 F.2d 298, 323 (D.C. Cir. 1981). In conducting our review, we "give an 'extreme degree of deference' to the EPA's evaluation of 'scientific data within its technical expertise,' especially where, as here, we review the 'EPA's administration of the complicated provisions of the Clean Air Act.'" Miss. Comm'n on Envtl. Quality v. EPA, 790 F.3d 138, 150 (D.C. Cir. 2015) (per curiam) (citation omitted) (first and second quoting City of Waukesha v. EPA, 320 F.3d 228, 247 (D.C. Cir. 2003) (per curiam); then quoting Catawba Cty. v. EPA, 571 F.3d 20, 41 (D.C. Cir. 2009) (per curiam)).

         We also may reverse an EPA action under the Program if we determine that it is "otherwise not in accordance with law" or "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." 42 U.S.C. § 7607(d)(9)(A), (C). The court reviews the EPA's interpretation of the Clean Air Act under the familiar two-step framework formulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Under Chevron, the court defers to the EPA's interpretation if the statutory text is ambiguous and the EPA's interpretation is reasonable. See id. at 842-45.

         We proceed to apply these standards of review to each of the claims raised in these consolidated cases. In Part III we address arguments regarding the 2018 Rule's applicable volumes, including claims that the EPA erred both in exercising its full cellulosic waiver authority and in declining to exercise its general waiver authority. Next, in Part IV we discuss challenges to the ways in which the EPA translates applicable volumes into compliance obligations, specifically its treatment of RINs generated by renewable fuel exports, its definition of "obligated parties," and its method for accounting for small refinery exemptions when calculating percentage standards. In Part V we deal with the claim that the EPA violated the Regulatory Flexibility Act in promulgating the 2018 Rule. And finally, in Part VI we consider whether the EPA violated the Endangered Species Act by failing to engage in interagency consultation before issuing the 2018 Rule.

         III. Applicable Volumes

         We begin with the 2018 Rule's applicable volumes. To arrive at those requirements, the EPA proceeded through a series of interlocking steps. It began by projecting 288 million gallons of cellulosic biofuel production in 2018-6.71 billion gallons short of the Program's 7-billion-gallon statutory target-and exercised its mandatory waiver accordingly. See 2018 Rule, 82 Fed. Reg. at 58, 492, 58, 495-504. Next, after estimating "reasonably attainable" volumes of other advanced biofuels and considering "the costs and benefits associated with" achieving those volumes, the EPA decided to exercise its full cellulosic waiver authority to reduce advanced biofuel and renewable fuel applicable volumes to 4.29 and 19.29 billion gallons, respectively. Id. at 58, 513. And finally, the EPA considered but rejected using its general waiver authority, concluding that neither "severe economic harm" nor "inadequate domestic supply" warranted further reductions in applicable volumes. Id. at 58, 516-18.

         Petitioners find fault in each of these steps. First, the Obligated Parties argue that the EPA miscalculated its projection of cellulosic biofuel production. Second, the National Biodiesel Board contends that the EPA impermissibly considered financial costs when deciding to set applicable volumes of advanced biofuels below reasonably attainable levels. And third, the Obligated Parties argue that, for various reasons, the EPA unreasonably interpreted and refused to exercise its general waiver authority. None of these challenges has merit.

         A. Liquid Cellulosic ...


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