Thread by @ScottIrwinUI

1. Remember after the 10th Circuit SRE ruling when I said never under-estimate the ingenuity of the lawyers for crude oil refiners to figure out new ways to undermine the RFS? Well they have apparently really outdone themselves this time with "gap" SRE petitions.

2. My comments are prompted by an @OPISBiofuels article yesterday ***US Farm and Biofuel Groups Demand Answers From EPA on SRE 'Gap Petitions'

@OPISBiofuels 3. The 10th Circuit ruling held that only small refiners with a continuous exemption over the life of the SRE was valid. If applied nationwide this would effectively kill the current EPA SRE policy. See this #FDD for full details farmdocdaily.illinois.edu/2020/03/epa-an…

@OPISBiofuels 4. Apparently (I have not actually seen these petitions), refiners have come up with the idea of "gap" SREs. It appears to me that the EPA is considering issuing SREs for the gap years way after the fact, thereby creating the continuous record of SREs required by the court.

@OPISBiofuels 5. You have to admire the chutzpah of the refiners to even think up a scheme like this. It would obviously be challenged in court and, once again, be highly likely to be defeated. But the refiners do not care a whit about this. Just throwin sand in the gears.

@OPISBiofuels 6. There is an additional aspect of the 10th Circuit ruling that could play a key part in whether gap petitions really happen. The court made it clear near the end of its ruling that SRE petitions have to include consideration of RIN pass through.

@OPISBiofuels 7. At least according to the 10th Circuit, it is no longer sufficient for a refiner to report "high" RIN costs and conclude that they have been economically harmed by the RFS mandates. Now have to also prove that RIN costs could not be passed on to blenders or retailers.

@OPISBiofuels 8. So, even if the EPA tries the refiners' gap gambit on SREs, I don't see how they can get around the pass through analysis required by the 10th Circuit. But, hey, lawyers.