1. @OPISBiofuels reported late yesterday that the US Appeals Court denied the "en banc" request for review of the 10th Circuit order on #SREs. This is no surprise given how rare it apparently is for such requests for review to be granted.
@OPISBiofuels 2. This means that the last hope for resurrecting the #SRE program is the US Supreme Court. How ironic. The first major #RFS court decision (remember inadequate domestic supply) was written by current SCOTUS Judge Kavanaugh, and it was a major defeat for the refiners and EPA.
@OPISBiofuels 3. I will be very surprised if the refiners push for a SCOTUS appeal of the 10th Circuit ruling, especially in the present circumstances. Obviously I am not a legal expert, but that seems very much like an extreme long shot for that to be successful.
@OPISBiofuels 4. So, my conclusion is that there is a very high probability that the #SRE program as implemented by the Trump EPA is deader than a doornail. Who would have thought it could end so abruptly? I thought there was always more legal risk than many, but it still surprised me.
@OPISBiofuels 5. It is also important that the denial of the the en banc appeal represents the 3rd major legal setback for refiners and the EPA on the implementation of the RFS. How many legal defeasts will it take to get them to quit beating their heads against that wall?
@OPISBiofuels 6. It is now established case law in the US that the original Congressional intent for the RFS was to be a "market forcing" policy to increase use of biofuels in the transportation fuel supply. This is the "North Star" of the RFS.
@OPISBiofuels 7. See this #FDD by myself and Jonathan Coppess for a detailed legal discussion of the North Star of the RFS and how it should guide all implementation decisions on the RFS. farmdocdaily.illinois.edu/2020/03/epa-an…
@OPISBiofuels 8. So, where to from here on implementation of the #RFS? One thing for sure is that the refiners will push the EPA to see if there is some kind of legal work around to give the RFS a haircut by some other means.
@OPISBiofuels 9. The EPA also has to make a formal decision how to apply the 10th Circuit decision nationally. Always the chance for mischief. Just have to wait and see.
@OPISBiofuels 10. I suspect the refiners are thinking about making a petition to reduce the RFS mandates for 2020 under the general waiver provision for "severe economic harm." Current circumstances probably match the intended purpose of that waiver provision as well as it ever will.
@OPISBiofuels 11. If you are interested in a detailed discussion of the severe economic harm waiver provision of the RFS see this earlier #FDD article by Jonathan Coppess and myself. farmdocdaily.illinois.edu/2017/10/genera…
@OPISBiofuels 12. Good discussion of the #SRE issues in this article by @toddneeleyDTN dtnpf.com/agriculture/we…
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