Case 1:22-cv-00347 Document 1 Filed 02/08/22 Page 1 of 11
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`Civil Action No.
`1:22-cv-00347
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`GROWTH ENERGY,
`701 8th Street NW, Suite 450
`Washington, DC 20001
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`Plaintiff,
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`
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`v.
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`MICHAEL S. REGAN, in his official
`capacity as Administrator,
`U.S. Environmental Protection Agency,
`1200 Pennsylvania Avenue NW
`Washington, DC 20460
`
`and
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`ENVIRONMENTAL PROTECTION
`AGENCY,
`1200 Pennsylvania Avenue NW
`Washington, DC 20460
`
`Defendants.
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`COMPLAINT FOR INJUNCTIVE RELIEF
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`Plaintiff Growth Energy brings this action to compel Defendants, the U.S. Environmental
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`Protection Agency and the Honorable Michael S. Regan, in his official capacity as Administrator
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`of the U.S. Environmental Protection Agency (collectively “EPA”), to establish renewable fuel
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`obligations for the 2021 and 2022 compliance years. Continuing its multi-year trend of
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`disregarding statutory deadlines, EPA has ignored the nondiscretionary duty established by
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`Clean Air Act (“CAA”) Section 211(o)(3)(B), 42 U.S.C. § 7545(o)(3)(B), to promulgate the
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`2021 Renewable Fuel Standards (“RFS”) obligations on or before November 30, 2020, and to
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`promulgate the 2022 RFS obligations on or before November 30, 2021. Plaintiff hereby seeks an
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`Case 1:22-cv-00347 Document 1 Filed 02/08/22 Page 2 of 11
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`injunction requiring EPA promptly to promulgate renewable fuel obligations for 2021 and 2022.
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`In support, Plaintiff alleges as follows:
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`JURISDICTION AND VENUE
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`1.
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`This Court has jurisdiction over this action pursuant to 42 U.S.C. § 7604(a)(2),
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`which authorizes citizen suits concerning EPA’s failure to perform a nondiscretionary act or duty
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`under the CAA. Section 7604(a) grants this Court jurisdiction to order EPA to perform such
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`duty. In addition, this Court has jurisdiction over this action and over the parties pursuant to 28
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`U.S.C. §§ 1331 and 1361. The relief requested is authorized under 42 U.S.C. § 7604 and 28
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`U.S.C. §§ 2201, 2202, and 1361.
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`2.
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`Venue in this Court is proper under 28 U.S.C. § 1391(e)(1) because Defendants
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`are principally located in the District of Columbia, and a substantial part, if not all, of the events
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`or omissions giving rise to the claims asserted herein arose in this District.
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`PARTIES
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`3.
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`Plaintiff is a national biofuel trade association. Plaintiff represents producers and
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`supporters of ethanol who are working to bring consumers better choices at the fuel pump, grow
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`America’s economy, and improve the environment for future generations. Plaintiff’s membership
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`represents nearly half of all American ethanol plants, many of the largest and most prominent
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`fuel retailers in the country, and leading businesses that support the ethanol industry.
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`4.
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`Plaintiff represents its members in judicial, legislative, and administrative forums.
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`In particular, Plaintiff routinely comments on EPA rulemaking proposals to implement the RFS
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`program, and has participated in litigation involving several of EPA’s RFS regulations since the
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`program’s inception.
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`5.
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`Plaintiff is a “person” as defined in the CAA. See 42 U.S.C. § 7602(e).
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`6.
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`Defendant Michael S. Regan is the Administrator of the EPA. The Administrator
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`is charged with implementation and enforcement of the CAA, including the CAA’s
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`nondiscretionary duty to timely determine and promulgate renewable fuel obligations on an
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`annual basis.
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`7.
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`Defendant EPA is an executive agency of the federal government charged with
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`implementing the CAA’s RFS program.
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`STATUTORY AND REGULATORY BACKGROUND
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`8.
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`In the Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594, Congress
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`amended the CAA to establish the RFS program to increase the quantity of renewable fuels used
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`in gasoline in the United States. Congress expanded that program in 2007 with the Energy
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`Independence and Security Act of 2007, Pub. L. No. 110-140, 121 Stat. 142. That law increased
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`the overall annual volumes of renewable fuel required through the year 2022 for four different
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`categories of renewable fuel: renewable fuel, advanced biofuel, biomass-based diesel and
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`cellulosic biofuel. These categories are “nested”: biomass-based diesel and cellulosic biofuel are
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`types of advanced biofuel, and advanced biofuel is a type of renewable fuel.
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`9.
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`The statute specifies minimum, or “applicable,” annual volume requirements for
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`renewable fuel, advanced biofuel, and cellulosic biofuel through 2022, and applicable volume
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`requirements for biomass-based diesel for each year through 2012. 42 U.S.C. § 7545(o)(2)(B)(i).
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`Congress’s purpose in requiring EPA to establish such annual volumes was “to force the market
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`to create ways to produce and use greater and greater volumes of renewable fuel each year.”
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`Americans for Clean Energy v. EPA, 864 F.3d 691, 710 (D.C. Cir. 2017).
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`10.
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`Because the statute’s applicable volume requirements increase rapidly over time,
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`Congress equipped EPA with several tools to alter the requirements listed in the statute based on
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`actual conditions in the marketplace and the national economy. These tools include two
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`provisions requiring or permitting EPA to reduce, or waive, certain requirements. Id. §
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`7454(o)(7).
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`11.
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`To enable obligated parties to comply with the national volume requirements,
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`EPA must promulgate annual “regulations to ensure that transportation fuel sold or introduced
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`into commerce in the United States … , on an annual average basis, contains the applicable
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`volume,” as adjusted through the waiver process, “of renewable fuel, advanced biofuel,
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`cellulosic biofuel, and biomass-based diesel.” Id. § 7545(o)(2)(A)(i). These regulations specify
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`“applicable percentages,” or the “renewable fuel obligation,” that each obligated part must meet.
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`Id. § 7545(o)(3).
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`12.
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`Each year, EPA must “determine and publish” the renewable fuel obligation
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`“[n]ot later than November 30” of the preceding compliance year. Id. § 7545(o)(3)(B)(i).
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`13.
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`Until EPA has fulfilled its obligations for a given year under § 7545(o)(3)(B) and,
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`if applicable, under § 7545(o)(2)(B)(ii), obligated parties may not know their precise obligations
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`and renewable fuel producers may not know the level of demand.
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`14.
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`The deadlines Congress set for EPA to establish renewable fuel volumes and
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`obligations are intended to inform obligated parties and renewable fuel producers, prior to each
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`compliance year, of the upcoming RFS obligations so they can plan accordingly. As EPA
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`indicated when it promulgated regulations for the expanded RFS program in 2007, “[g]iven the
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`implications of these standards and the necessary judgment that can[no]t be reduced to a formula
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`akin to the [previous RFS program] regulations, we believe it is appropriate to set standards
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`through a notice-and-comment rulemaking process. Thus, for future standards, we intend to issue
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`[a Notice of Proposed Rulemaking] by summer and a final rule by November 30 of each year in
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`order to determine the appropriate standards applicable in the following year.” Regulation of
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`Fuels and Fuel Additives: Changes to Renewable Fuel Standard Program, 75 Fed. Reg. 14,670,
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`14,675 (Mar. 26, 2010) (2010 Regulations).
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`FACTUAL BACKGROUND
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`15.
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`EPA has repeatedly failed to meet the November 30 statutory deadline for
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`promulgating annual RFS regulations. For example:
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` EPA did not promulgate the final 2010 RFS regulations until February 3, 2010,
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`over three months late and into the compliance year, see 2010 Regulations, 75
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`Fed. Reg. 14,670;
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` EPA did not promulgate the final 2012 RFS regulations until December 22, 2011,
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`more than three weeks late, see 2012 Standards for the Renewable Fuel Standard
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`Program: Final Rulemaking, 77 Fed. Reg. 1,320 (Jan. 9, 2012);
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` EPA did not promulgate the final 2013 RFS regulations until August 6, 2013, 247
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`days late and nearly two-thirds of the way through the compliance year, see
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`Regulation of Fuels and Fuel Additives: 2013 Renewable Fuel Standards, 78 Fed.
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`Reg. 49,794 (Aug. 15, 2013);
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` EPA did not promulgate the final 2014 RFS regulations until November 30, 2015,
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`two years late and fully past the compliance year, see Final Renewable Fuel
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`Standards for 2014, 2015 and 2016, and the Biomass-Based Diesel Volume for
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`2017, 80 Fed. Reg. 77,420 (Dec. 14, 2015);
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` EPA did not promulgate the final 2015 RFS regulations until November 30, 2015,
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`a year late and with only one month of the compliance year remaining, see id.
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`16.
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`Under 42 U.S.C. § 7545(o)(3)(B)(i), EPA was obligated to promulgate the 2021
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`RFS regulations on or before November 30, 2020, and was obligated to promulgate the 2022
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`RFS regulations on or before November 30, 2021.
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`17.
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`EPA has not promulgated final RFS rules for 2021 or 2022. EPA noticed
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`proposed rulemaking to establish the 2021 and 2022 RFS regulations on December 7, 2021. See
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`Renewable Fuel Standard (RFS) Program: RFS Annual Rules,
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`https://www.epa.gov/sites/default/files/2021-12/documents/rfs-2020-2021-2022-rvo-standards-
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`nprm-2021-12-07.pdf; 86 Fed. Reg. 72,436 (Dec. 21, 2021) (official publication in Federal
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`Register). EPA noticed this proposed rulemaking over a year after when Defendants were
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`required by statute to promulgate a final rule for 2021, and after when Defendants were required
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`to promulgate a final rule for 2022.
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`18.
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`EPA has thus failed to meet the statutory deadlines for promulgating the 2021 and
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`2022 RFS regulations. These failures violate the clear, mandatory duties and deadlines imposed
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`on EPA by CAA Section 211(o), 42 U.S.C. § 7545(o) and harm Plaintiff’s members, as
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`described below.
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`INJURIES RESULTING FROM EPA’S FAILURE TO ACT
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`19.
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`Plaintiff’s members are biofuels producers whose fuel products are purchased by
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`obligated parties to comply annually with their renewable volume obligations set under the RFS
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`program, as described above. EPA’s regulations setting applicable renewable fuel volumes
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`directly dictate the level of national demand for renewable fuels—including ethanol, biomass-
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`based diesel, and cellulosic biofuels—produced by Plaintiff’s members.
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`20.
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`Plaintiff’s members have therefore suffered and continue to suffer economic
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`injury due to EPA’s failure to timely promulgate the final 2021 and 2022 RFS fuel obligations.
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`EPA’s delay in taking those actions negates any ability for Plaintiff’s members to plan and, if
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`necessary, adjust their operations to assure appropriate levels of production to match obligated
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`parties’ compliance obligations with annual RFS requirements. This uncertainty and inability to
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`plan future production directly affects Plaintiff’s members’ bottom lines.
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`21.
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`Specifically, since 2021 is now over, Plaintiff’s members are unable to change
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`their production levels and therefore were denied the ability to accurately predict the demand for
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`their products in 2021, contrary to the requirements of the RFS. Given EPA’s now inevitable
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`delay in promulgating the 2022 RFS obligations until well into 2022 (at best), Plaintiff’s
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`members will be similarly constrained with respect to at least a substantial portion of 2022.
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`22.
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`Additionally, when EPA fails to meet its statutory deadlines, it often retroactively
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`sets standards for the missed periods to match the actual levels of renewable fuel use that
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`occurred in the absence of the RFS’s market-forcing standards. See Final Renewable Fuel
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`Standards for 2014, 2015 and 2016, and the Biomass-Based Diesel Volume for 2017, 80 Fed.
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`Reg. 77,420, 77,426-27 (Dec. 14, 2015) (after missing deadlines, retroactively setting 2014 and
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`2015 obligations to levels of actual use). Indeed, EPA has proposed to do precisely that for
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`2021, Renewable Fuel Standard (RFS) Program: RFS Annual Rules, 86 Fed. Reg. 72,436,
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`72,438-39 (Dec. 21, 2021), and EPA’s past practice suggests it could do the same for 2022. This
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`approach causes direct monetary harm to Plaintiff’s members by lowering the ultimate demand
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`for the renewable fuels they produce in comparison to what would have been demanded had the
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`RFS’s standards been timely adopted to fulfill their core purpose of spurring increased renewable
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`fuel use.
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`23.
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`And the effects of these delays will be felt by Plaintiff’s members in future years.
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`As EPA has recognized, the actual market effects of the RFS standards and actual compliance
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`activity are mediated through the “bank” of carryover RINs, that is, leftover compliance credits
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`from a prior year that are available for compliance in a future year.
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`24.
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`These injuries are the direct result of EPA’s failure to timely comply with the
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`statutory deadlines prescribed by the CAA.
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`25.
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`These injuries are irreparable. Once an opportunity to plan supply or to sell
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`renewable has passed, it cannot be regained; the transportation fuel will have already been sold
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`and used by the consumer without Plaintiff’s renewable fuel. And Plaintiff cannot obtain
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`compensatory damages from EPA for its unlawful actions.
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`NOTICE
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`26.
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`Sixty days prior to bringing an action “where there is alleged a failure of the
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`Administrator to perform any act or duty under this chapter which is not discretionary with the
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`Administrator,” 42 U.S.C. § 7604(a)(2), the plaintiff must give notice to the Administrator, id.
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`§ 7604(b)(2).
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`27.
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`On December 1, 2020, Plaintiff provided notice of its intent to sue Defendants
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`pursuant to Section 304(b)(2) of the CAA, 42 U.S.C. § 7604(b)(2), and 40 C.F.R. part 54 to
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`enforce EPA’s nondiscretionary duty to promulgate the 2021 RFS regulations on or before
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`November 30, 2020. A copy of this letter is attached hereto as Exhibit A.
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`28.
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`On November 2, 2021, Plaintiff provided notice of its intent to sue Defendants
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`pursuant to Section 304(b)(2) of the CAA, 42 U.S.C. § 7604(b)(2), and 40 C.F.R. part 54 to
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`enforce EPA’s nondiscretionary duty to promulgate the 2022 regulations on or before November
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`30, 2021. A copy of this letter is attached hereto as Exhibit B.
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`29.
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`On December 1, 2021, Plaintiff provided further notice of its intent to sue
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`Defendants pursuant to Section 304(b)(2) of the CAA, 42 U.S.C. § 7604(b)(2), and 40 C.F.R.
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`part 54 to enforce EPA’s nondiscretionary duty to promulgate the 2022 regulations on or before
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`November 30, 2021. A copy of this letter is attached hereto as Exhibit C.
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`30.
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`EPA timely received Plaintiff’s notice letters, as demonstrated by the fact that
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`EPA posted copies on its webpage entitled “Notices of Intent to Sue the U.S. Environmental
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`Protection Agency (EPA),” https://www.epa.gov/ogc/notices-intent-sue-us-environmental-
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`protection-agency-epa.
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`31. More than sixty days have passed since Plaintiff served these notice letters on
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`EPA regarding EPA’s failure to meet statutory deadlines for promulgating the 2021 and 2022
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`RFS regulations.
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`CLAIMS FOR RELIEF
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`COUNT I: Failure to Perform a Nondiscretionary Act or Duty
`to Promulgate the 2021 RFS Regulations
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`32.
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`CAA Section 211(o)(3)(B)(i), 42 U.S.C. § 7545(o)(3)(B)(i), requires EPA to
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`determine, and publish in the Federal Register, the renewable fuel obligations for a given
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`calendar year “[n]ot later than November 30 of” the preceding calendar year. 42 U.S.C. §
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`7545(o)(3)(B)(i).
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`33.
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`For calendar year 2021, EPA was required to determine and publish the
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`renewable fuel obligations by November 30, 2020.
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`34.
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`EPA failed to determine and publish the renewable fuel obligations for 2021 by
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`November 30, 2020—and still has not done so.
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`35.
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`EPA’s failure to timely promulgate the 2021 RFS regulations in accordance with
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`42 U.S.C. § 7545(o) constitutes a failure “to perform any act or duty . . . which is not
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`discretionary with the Administrator.” 42 U.S.C. § 7604(a)(2).
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`36.
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`EPA’s failure has harmed and continues to harm Plaintiff’s members by impairing
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`their ability to meaningfully plan their production and by reducing the demand for their products.
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`COUNT II: Failure to Perform a Nondiscretionary Act or Duty
`to Promulgate the 2022 RFS Regulations
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`37.
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`CAA Section 211(o)(3)(B)(i), 42 U.S.C. § 7545(o)(3)(B)(i), requires EPA to
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`determine, and publish in the Federal Register, the renewable fuel obligations for a given
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`calendar year “[n]ot later than November 30 of” the preceding calendar year. 42 U.S.C. §
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`7545(o)(3)(B)(i).
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`38.
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`For calendar year 2022, EPA was required to determine and publish the
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`renewable fuel obligations by November 30, 2021.
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`39.
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`EPA failed to determine and publish the renewable fuel obligations for 2022 by
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`November 30, 2021—and still has not done so.
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`40.
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`EPA’s failure to timely promulgate the 2022 RFS regulations in accordance with
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`42 U.S.C. § 7545(o) constitutes a failure “to perform any act or duty . . . which is not
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`discretionary with the Administrator.” 42 U.S.C. § 7604(a)(2).
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`41.
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`EPA’s failure has harmed and continues to harm Plaintiff’s members by impairing
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`their ability to meaningfully plan their production and by reducing the demand for their products.
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`WHEREFORE, Plaintiff respectfully requests that the Court:
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`RELIEF REQUESTED
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`A.
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`Declare that Defendants have failed to perform nondiscretionary acts or duties
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`under 42 U.S.C. § 7545(o) to promulgate the 2021 and 2022 RFS regulations;
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`B.
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`Order EPA to promulgate final 2021 and 2022 RFS regulations promptly under 42
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`U.S.C. § 7545(o), pursuant to an expeditious deadline established by this Court;
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`C.
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`Retain jurisdiction to ensure compliance with the Court’s order;
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`D.
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`Award Plaintiff the costs of its participation in this action, including reasonable
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`attorneys’ fees; and
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`E.
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`Grant such other relief as the Court deems just and proper.
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`February 8, 2022
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`Respectfully submitted,
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`/s/ Seth P. Waxman
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`Seth P. Waxman (D.C. Bar No. 257337)
`David M. Lehn (D.C. Bar No. 496847)
`Wilmer Cutler Pickering Hale and Dorr LLP
`1875 Pennsylvania Avenue, NW
`Washington, DC 20006
`(202) 663-6800
`seth.waxman@wilmerhale.com
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`Counsel for Growth Energy
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