Growth Energy v. EPA

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 25, 2020 Decided July 16, 2021

No. 19-1023

GROWTH ENERGY, ET AL.,
PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY AND MICHAEL S.
REGAN, ADMINISTRATOR,
RESPONDENTS

AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS, ET
AL.,
INTERVENORS

Consolidated with 19-1027, 19-1032, 19-1033, 19-1035,
19-1036, 19-1037, 19-1038, 19-1039

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

David M. Lehn, Douglas A. Hastings, and David M.
Williamson argued the causes for the Renewable Fuels
Producers. With them on the briefs were Bryan M. Killian,
Jerome C. Muys, Jr., Sandra P. Franco, Seth P. Waxman,
Saurabh Sanghvi, and Claire H. Chung.
 2

Amir C. Tayrani argued the cause for Obligated Parties.
With him on the briefs were Samara L. Kline, Lisa M. Jaeger,
Brittany M. Pemberton, Clara Poffenberger, Richard S.
Moskowitz, Robert J. Meyers, Thomas A. Lorenzen, Elizabeth
B. Dawson, Suzanne Murray, Michael J. Scanlon, and Lochlan
F. Shelfer. Evan A. Young entered an appearance.

Carrie Apfel argued the cause for Environmental
petitioners. With her on the briefs were Peter Lehner and
Surbhi Sarang.

Tsuki Hoshijima, Benjamin R. Carlisle, and Michael R.
Eitel, Attorneys, U.S. Department of Justice, argued the causes
for respondents. With them on the brief were Jeffrey Bossert
Clark, Assistant Attorney General, and Jonathan D. Brightbill,
Principal Deputy Assistant Attorney General.

Elizabeth B. Dawson argued the cause for intervenors
American Fuel & Petrochemical Manufacturers, et al. in
support of respondents. With her on the brief were Thomas A.
Lorenzen, Robert J. Meyers, Richard S. Moskowitz, Amir C.
Tayrani, Lochlan F. Shelfer, Robert A. Long, Jr., Kevin F.
King, Thomas R. Brugato, Carlton Forbes, and John Wagner.
Stacy R. Linden entered an appearance.

Bryan M. Killian, Douglas A. Hastings, Seth P. Waxman,
David M. Lehn, Saurabh Sanghvi, Claire H. Chung, and Ethan
G. Shenkman were on the brief for intervenors Growth Energy,
et al. in support of respondents.

Bryan M. Killian, Douglas A. Hastings, Robert A. Long,
Jr., Kevin F. King, Thomas R. Brugato, Seth P. Waxman, David
M. Lehn, Saurabh Sanghvi, and Claire H. Chung were on the
 3
brief for intervenors Growth Energy, et al. in support of
respondents.

Before: SRINIVASAN, Chief Judge, and ROGERS and
GARLAND,* Circuit Judges.

Opinion for the Court filed PER CURIAM.

PER CURIAM: To move the United States towards greater
reliance on clean energy, the Clean Air Act’s Renewable Fuel
Standard Program calls for annual increases in the amount of
renewable fuel introduced into the U.S. fuel supply. The
statute sets annual targets for renewable fuel volumes, and each
year, the Environmental Protection Agency implements those
targets. The agency has certain waiver authorities under the
statute to reduce the annual targets below the statutory levels.

Three groups of petitioners now challenge EPA’s 2019
rulemaking. A group of companies that produce renewable
fuels argues that EPA’s 2019 volume levels are too low. In
contrast, a group of fuel refiners and retailers argues that the
agency’s 2019 volumes are too high. Finally, a coalition of
environmental organizations challenges various aspects of the
2019 Rule relating to environmental considerations.

We deny the petitions for review except for two of the
environmental organizations’ challenges. As to those
challenges, we remand the 2019 Rule without vacatur to enable
EPA to reassess the Rule in relevant part.

* Then Judge Garland was a member of the panel but did not
participate in the disposition of these consolidated cases.
 4
I.

In 2005, Congress amended the Clean Air Act to establish
the Renewable Fuel Standard (RFS) Program. See Energy
Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594. The
RFS Program calls for a gradual shift over time to the use of
renewable fuels.

This court recently entertained challenges to EPA’s 2018
iteration of its annual regulations implementing the RFS
Program. See generally Am. Fuel & Petro. Mfrs. v. EPA, 937
F.3d 559 (D.C. Cir. 2019) (AFPM 2018). Now before the
court are challenges to EPA’s regulations for the ensuing
yearly cycle — the 2019 Rule. Renewable Fuel Standard
Program: Standards for 2019 and Biomass-Based Diesel
Volume for 2020, 83 Fed. Reg. 63,704 (Dec. 11, 2018) (2019
Rule). Several of the challenges presented in this case
resemble or even match ones raised regarding the 2018 Rule.

Because the description of the statutory and regulatory
background for the challenges to EPA’s 2018 Rule considered
in that case is fully applicable to the challenges we now
confront to the 2019 Rule, we repeat AFPM 2018’s description
of that background here rather than reinvent it:

[T]he [RFS] 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,
 5
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
 6
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.

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 . . . . See 42 U.S.C.
§ 7545(o)(2)(B)(i)(I)–(III) . . . .
 7

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
 8
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.
 9
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) . . . . The Program . . . [also]
permit[s] “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.”
 10
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
....

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
 11
forward a RIN deficit); 40 C.F.R. § 80.1427(b) (addressing
“[d]eficit carryovers”); id. § 80.1428(c) (addressing “RIN
expiration”).

AFPM 2018, 937 F.3d at 568–72.

On December 11, 2018, EPA issued the 2019 Rule.
Three sets of parties filed petitions for review challenging the
Rule on various grounds. The first set of petitioners consists
of Growth Energy, RFS Power Coalition, the National
Biodiesel Board, and Producers of Renewables United for
Integrity Truth and Transparency. Those petitioners produce
(or represent companies that produce) renewable fuels. We
will refer to those petitioners as Renewable Producers, and they
generally contend that the 2019 Rule’s renewable fuel
obligations are unduly low.

The second set of petitioners consists of Monroe Energy,
LLC, Small Retailers Coalition, American Fuel &
Petrochemical Manufacturers, and Valero Energy Corporation.
Those petitioners are (or represent) fuel refiners and retailers
subject to RFS volume requirements. We will refer to this set
of petitioners as Obligated Parties, and they contend that the
2019 Rule’s renewable fuel obligations are too demanding.
The American Petroleum Institute and a subset of Renewable
Producers, intervenors on behalf of EPA, contest Obligated
Parties’ claim that the volumes are too high.

The final set of petitioners consists of National Wildlife
Federation, Healthy Gulf, and Sierra Club. We will refer to
this set of environmental organizations as Environmental
Petitioners, and their challenges pertain to certain aspects of the
2019 Rule relating to the environment. A subset of
Renewable Producers again intervenes on behalf of EPA,
contesting Environmental Petitioners’ claims.
 12

We first consider Renewable Producers’ challenges,
followed by those of Obligated Parties, and then those of
Environmental Petitioners.

II.

A. Small Refinery Exemptions

Renewable Producers first object to EPA’s failure to
account for certain small refinery exemptions in the 2019 Rule.
The Act deems all small refineries exempt from the annual
percentage standards until 2011. 42 U.S.C.
§ 7545(o)(9)(A)(i). For subsequent years, small refineries
may petition for an extension of their exemption “at any time,”
id. § 7545(o)(9)(B)(i), and EPA must grant the exemption if
compliance with the renewable fuel obligations would cause
the petitioning small refinery “disproportionate economic
hardship,” id. § 7545(o)(9)(A)(ii)(II). Because EPA must
publish the percentage standards for the upcoming compliance
year by November 30, id. § 7545(o)(3)(B)(i), exemptions are
sometimes granted after EPA has promulgated that year’s
standards. These so-called “retroactive” exemptions hinder
achievement of the applicable volumes by excusing some
obligated parties from having to produce renewable fuel
without requiring that other non-exempt parties make up the
shortfall. See AFPM 2018, 937 F.3d at 571. Nonetheless,
since first exempting small refineries from their renewable fuel
obligations in 2011, EPA has consistently declined to adjust the
percentage standards to account for exemptions it may grant
after the standards are finalized. See 82 Fed. Reg. 58,486,
58,523 (Dec. 12, 2017); 81 Fed. Reg. 89,746, 89,800 (Dec. 12,
2016); 80 Fed. Reg. 77,420, 77,511 (Dec. 14, 2015); 78 Fed.
Reg. 49,794, 49,826 (Aug. 15, 2013); 77 Fed. Reg. 1,320,
 13
1,340 (Jan. 9, 2012); 75 Fed. Reg. 76,790, 76,804–05 (Dec. 9,
2010).

In setting the 2019 standards, EPA again declined to
account for retroactive exemptions. 83 Fed. Reg. at 63,740.
EPA also declined to reconsider its approach, deeming
comments on the issue “beyond the scope of this rulemaking.”
Response to Comments (RTC) at 183.

Renewable Producers maintain that EPA’s refusal to
adjust for retroactive exemptions violates the Act and is
arbitrary and capricious. In their view, EPA’s policy (1)
contravenes its statutory duty to “ensure” that the annual
requirements were met, 42 U.S.C. § 7545(o)(3)(B)(i);
(2) illegally converts “exemption[s],” id. § 7545(o)(9), into
“waivers,” id. §§ 7545(o)(7), (8)(D); and (3) subverts the
market-forcing purposes of the renewable fuel standards
program. Renewable Producers further contend that EPA
acted arbitrarily in declining to revisit its approach to
“retroactive” exemptions in the 2019 Rule.

Under the Act’s sixty-day time bar for judicial review, the
court lacks jurisdiction to review Renewable Producers’ direct
challenge to EPA’s approach to “retroactive” exemptions.
The court may, however, review EPA’s decision not to
reconsider the issue because that decision was made in the 2019
rulemaking. Upon review of the record, we conclude that
EPA’s decision not to reconsider its policy was reasonable and
we deny Renewable Producers’ challenge.

1.

The Clean Air Act requires that challenges to a final EPA
action be filed within sixty days of its publication in the Federal
Register or the occurrence of valid after-arising grounds. 42
 14
U.S.C. § 7607(b)(1). This time bar is jurisdictional, Med.
Waste Inst. & Energy Recovery Council v. EPA, 645 F.3d 420,
427 (D.C. Cir. 2011), and Renewable Producers’ challenge to
EPA’s approach to “retroactive” exemptions misses the
deadline by almost a decade. EPA first adopted its approach
in the 2011 Rule. 75 Fed. Reg. at 76,804–05. Thereafter,
EPA maintained that approach in each rule setting the annual
standards, including in the 2019 Rule. Renewable Producers
do not contend that any “after-arising” grounds exist.

Recognizing this jurisdictional obstacle, Renewable
Producers attempt to distinguish the policy they are challenging
from the policy EPA adopted in the 2011 Rule. To that end,
they maintain that EPA declined in the 2011 Rule to modify
the applicable percentage standards throughout the year to
reflect small refinery exemptions, whereas they challenge
EPA’s refusal to adjust the percentage standards based on the
small refinery exemptions it expects to grant after the standards
are issued. Oral Arg. Rec. 2:50–3:10. Even assuming
arguendo that this is so, the 2012 Rule ruled out any
adjustments to account for retroactive exemptions, determining
that EPA would account for only exemptions granted by the
date the standards were set. As a result, the 2012 Rule
foreclosed Renewable Producers’ proposals. For example,
their suggestion that EPA could project expected retroactive
exemptions ex ante cannot be squared with EPA’s decision to
account only for exemptions that have been granted as of the
date the standards were set. 77 Fed. Reg. at 1,340. Thus, at
best, Renewable Producers’ challenge to EPA’s approach is
seven rather than eight years too late. Renewable Producers
still may petition EPA to change its policy regarding small
refinery exemptions even though the deadline for judicial
review of that policy has passed, see, e.g., Alon Ref. Krotz
Springs, Inc. v. EPA, 936 F.3d 628, 639 (D.C. Cir. 2019), cert.
denied sub nom. Valero Energy Corp. v. EPA, 140 S. Ct. 2792
 15
(2020), but the court lacks jurisdiction to consider their instant
challenge.

2.

Although Renewable Producers mainly mount a direct
challenge to EPA’s retroactive-exemption approach, they also
challenge EPA’s refusal to reconsider that approach in the 2019
Rule. They maintain that EPA must reassess the issue
annually, pointing to the provision directing EPA to
promulgate “renewable fuel obligation[s]” each year so as to
“ensure[] that the [volume] requirements . . . are met.” 42
U.S.C. § 7545(o)(3)(B)(i). Renewable Producers additionally
maintain that EPA could not disregard the issue because it was
“an important aspect of the problem” EPA faced in setting the
2019 applicable volumes. Motor Vehicle Mfrs. Ass’n of U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
By refusing to revisit its approach, they continue, EPA allowed
a significant portion of the applicable volumes to go unmet.

Unlike Renewable Producers’ direct challenge to EPA’s
approach, this challenge is timely because it applies to a
decision EPA took in the 2019 rulemaking. See AFPM 2018,
937 F.3d at 586–87; Alon, 936 F.3d at 654. This challenge,
however, fails on the merits. EPA’s decision to maintain its
approach to small refinery exemptions in the 2019 Rule was
reasonable. EPA reexamined its approach to retroactive
exemptions one year earlier in the 2018 Rule, and the court
upheld EPA’s treatment of small refinery exemptions as
reasonable and reasonably explained. See AFPM 2018, 937
F.3d at 587–90. EPA could reasonably decline to reconsider
the same issue again one year later when there had been no
change in circumstances that would have required it to
reexamine its approach again. See id. at 587. Although
Renewable Producers describe a “dramatic[] increase[]” in
 16
exemptions, Renewable Producers Pet’rs’ Br. 11, that increase
occurred in 2016 and 2017, before the court upheld EPA’s
approach. Further, the court in AFPM 2018 upheld EPA’s
approach to small refinery exemptions despite exemptions
representing 9% of the 2017 volume requirements. See RFS
Small Refinery Exemptions, EPA, https://www.epa.gov/fuels-
registration-reporting-and-compliance-help/rfs-small-refinery-
exemptions; Renewable Fuel Annual Standards, EPA,
https://www.epa.gov/renewable-fuel-standard-program/
renewable-fuel-annual-standards. It was not unreasonable for
EPA to decline to reexamine its policy in the 2019 rulemaking
where exemptions decreased to account for 7% of the 2018
volume requirements. See id.

B. Producers United’s Challenge

Next, Producers United launches a broadside attack
against EPA’s practice of granting exemptions to small
refineries after promulgating the annual percentage standards.
Here too, the court lacks jurisdiction to review this challenge
as part of a petition for review of the 2019 Rule. That rule
granted no exemptions, and so Producers United challenge the
wrong action. See Producers of Renewables United for
Integrity Truth & Transparency v. EPA, 778 F. App’x 1, 4
(D.C. Cir. 2019). Producers United cites the statement in the
2019 Rule that “any exemptions for 2019 that are granted after
the final rule is released will not be reflected in the percentage
standards that apply . . . in 2019.” 83 Fed. Reg. at 63,740.
But that statement did not take a position on whether to grant
retroactive exemptions; it said merely that if EPA granted any
exemptions after the issuance of the 2019 Rule, they would not
be reflected in the percentage standards. Foreclosing any
further doubt, EPA also stated in responding to comments that
the 2019 rulemaking “did not propose changes to, take
comment on, or otherwise reexamine the manner in which
 17
small refinery hardship petitions are evaluated.” RTC at 185.
The court, therefore, lacks jurisdiction to reach the merits of
Producers United’s challenge.

C. Renewable Electricity

Finally, RFS Power challenges EPA’s decision to exclude
electricity generated from renewable biomass (a form of
cellulosic biofuel) from its cellulosic biofuel projection in the
2019 Rule. The Act requires EPA to project the annual
“volume of cellulosic biofuel production.” 42 U.S.C.
§ 7545(o)(7)(D)(i). In 2014, EPA added “a new cellulosic
biofuel pathway for renewable electricity (used in electric
vehicles),” 79 Fed. Reg. 42,128, 42,128 (July 18, 2014),
whereby any facility that meets the requirements in 40 C.F.R.
§ 80.1426(f) may register to generate RINs. To date,
however, EPA has not approved any registration petitions for
facilities that produce electricity fuel. In the 2019 Rule, EPA
projected that 418 million gallons of cellulosic biofuel would
be produced. 83 Fed. Reg. at 63,705–08. This projection
included “production volumes from all facilities that are
reasonably likely to produce qualifying cellulosic biofuel in
2019.” RTC at 37 (emphasis added). EPA did not include in
its projection “production from facilities that must address
significant technical and regulatory issues prior to facility
registration (such as . . . facilities seeking to generate RINs for
electricity generated from biogas used as transportation fuel).”
Id. According to EPA, it was unlikely to register those
facilities in 2019 despite “working as expeditiously as possible,
in light of resource constraints and competing priorities.” Id.
at 36. Because only registered facilities may generate RINs,
EPA concluded that no RIN-generating, or qualifying,
electricity fuel would be produced in 2019.
 18
RFS Power maintains that EPA’s decision to exclude
electricity fuel was arbitrary and capricious because no real
“technical and regulatory issues” exist for electricity producers.
Further, RFS Power maintains that EPA insufficiently
explained the issues that prevented it from registering facilities,
and it illegitimately relied on its own “resource constraints and
competing priorities” to justify its projection. See Renewable
Producers Pet’rs’ Br. 36–38. The court is “particularly
deferential” to agencies’ predictive judgments, requiring only
that “the agency acknowledge factual uncertainties and identify
the considerations it found persuasive.” Rural Cellular Ass’n
v. FCC, 588 F.3d 1095, 1105 (D.C. Cir. 2009). EPA cleared
that modest bar.

In projecting the volume of cellulosic biofuel production,
EPA must take a “neutral aim at accuracy.” Am. Petro. Inst.
v. EPA, 706 F.3d 474, 476 (D.C. Cir. 2013). To do so, EPA
must consider those factors likely to influence the availability
of qualifying renewable fuel, and that is what it did here.
Because EPA’s own resource constraints and priorities would
affect whether it approved registration petitions from
electricity facilities, it was reasonable to consider them when
projecting the amount of qualifying cellulosic biofuel available
in 2019. Moreover, it was reasonable for EPA to limit its
projection to volumes available for compliance. Including
non-RIN-generating volumes in the 2019 Rule would have left
obligated parties “in an impossible position, or at least a highly
punitive one — that is, forced to purchase volumes of
[qualified] cellulosic biofuel greater than total production, or
pay fines for failing to do so.” Id. at 479. Nor was EPA’s
explanation for its decision inadequate. EPA was not writing
on a blank slate when it excluded electricity fuel from its 2019
cellulosic biofuel projection. It had discussed the technical
and regulatory barriers facing the renewable electricity
industry at length in 2016, see 81 Fed. Reg. 80,828, 80,890–
 19
900 (Nov. 16, 2016), and it declined to include electricity fuel
in its cellulosic biofuel projection in both 2017 and 2018.
Under the circumstances, EPA’s explanation for its 2019
cellulosic biofuel projection was adequate. In sum, there is no
basis for the court to disturb EPA’s findings.

Separate from its arbitrary-and-capricious challenge, RFS
Power maintains that EPA’s refusal to include electricity fuel
in the 2019 projections is inconsistent with the text of the Act,
which requires EPA to estimate fuel production rather than
RINs. And RFS Power maintains that EPA’s failure to
approve electricity facility registrations is “tantamount to
revoking the 2014 pathway rule” without notice and comment.
Renewable Producers Pet’rs’ Reply Br. 19. RFS Power did
not raise these arguments until its reply brief, and they are
forfeited because it has identified no extraordinary
circumstances to excuse this delay. See Am. Wildlands v.
Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008).

III.

We now turn to the challenges brought by Obligated
Parties. We reject each of those challenges.

A. Severe Economic Harm Waiver

Under EPA’s general waiver authority, the agency “may”
reduce statutory volume requirements “based on a
determination by the Administrator, after public notice and
opportunity for comment, 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)
(emphasis added). In implementing that severe economic
harm waiver, EPA first determines whether implementation of
the statutory RFS volumes would cause severe economic harm.
 20
If so, the agency then decides whether to reduce the statutory
volumes. Obligated Parties contend that EPA acted arbitrarily
and capriciously in declining to exercise the severe economic
harm waiver in the 2019 Rule. But because the agency
“examine[d] the relevant data and articulate[d] a satisfactory
explanation for its action,” we uphold its decision not to
exercise the waiver. State Farm, 463 U.S. at 43; see also
AFPM 2018, 937 F.3d at 581 (applying arbitrary and capricious
review to EPA’s general waiver determination).

First, Obligated Parties challenge EPA’s determination
that the 2019 volumes would not cause severe economic harm.
83 Fed. Reg. at 63,708. In particular, Obligated Parties claim
that new evidence — a study by Dr. Craig Pirrong, Professor
of Finance and Energy Markets at the University of Houston’s
Bauer College of Business — contradicts EPA’s understanding
that refineries subject to RFS obligations recover their
compliance costs by passing along the costs to consumers
through price increases. See generally Alon, 936 F.3d at 649.
Relying on the Pirrong study, Obligated Parties assert that the
“pass-through” theory is flawed and that RFS requirements
impose severe economic consequences on refiners in the
Eastern United States (specifically the “PADD1” region,
shorthand for Petroleum Administration for Defense District
1).

We reject this challenge. EPA has interpreted the severe
economic harm waiver to require “generally a high degree of
confidence that severe harm would occur,” as well as “a
demonstration that implementation of the RFS Program itself
would cause severe economic harm (as opposed to allowing a
waiver if severe economic harm were demonstrated for any
reason, or if the RFS merely contributed to severe harm).”
Memorandum from David Korotney, Off. of Transp. & Air
Quality, U.S. EPA, to EPA Docket EPA-HQ-OAR-2017-0091,
 21
Assessment of Waivers for Severe Economic Harm or BBD
Prices for 2018, at 15 (Nov. 30, 2017) (quotation marks
omitted). The court has sustained that interpretation of the
severe economic harm waiver. AFPM 2018, 937 F.3d at 579–
80.

Applying that interpretation in connection with the 2019
Rule, EPA reasonably concluded that Obligated Parties had
failed to make the strong causal showing required to trigger the
waiver. The agency explained that commenters “did not
provide any concrete evidence that their financial difficulties
are caused primarily or even significantly by the RFS
program,” rather than by other factors. RTC at 14. That
conclusion is consistent with the Pirrong study relied upon by
Obligated Parties. Even accepting the study’s conclusion that
refineries cannot pass on RIN costs to consumers, such that
RFS compliance comes at a cost to refineries, that conclusion
does not establish that “the RFS Program itself” would cause
severe economic harm rather than “merely contributing” to
harm. Korotney Memorandum, Assessment of Waivers for
Severe Economic Harm, at 15. Indeed, the Pirrong study
acknowledges that PADD1 refineries have consistently
experienced lower gross profit margins than refineries in other
parts of the United States and that those refineries “faced
significant economic headwinds” even before implementation
of the RFS. Craig Pirrong, Analysis of the RFS Program and
the 2019 Proposed Standards 8 (2018); see id. at 12, 14. In
that light, it was reasonable for EPA to conclude that RFS costs
alone were not the primary driver of PADD1 refineries’
economic difficulties.

Obligated Parties next claim that EPA’s refusal to exercise
the severe economic harm waiver stands at odds with the
agency’s grant of small refinery exemptions. We again
disagree. As EPA explained, “small refinery exemptions are
 22
held to a different standard than a waiver under severe
economic harm: the former requires ‘disproportionate
economic hardship’ to ‘[a] small refinery’ whereas the latter
requires severe economic harm to a State, a region, or the
United States.” RTC at 19. The agency’s recognition that
RFS compliance costs could cause financial difficulties for
certain small refineries, then, does not conflict with the
agency’s conclusion that there was insufficient evidence of
statewide or regionwide severe economic harm to warrant
exercise of the waiver.

Obligated Parties also contend that EPA impermissibly
considered the potential benefits of the RFS program in
determining whether to issue the waiver. In their view, the
statute only permits EPA to consider potential economic harms
(not benefits) in deciding whether to exercise the waiver. But
EPA explained that it would have declined to exercise the
severe economic harm waiver even if it did not take the benefits
of the RFS Program into consideration. RTC at 17. We thus
have no occasion to reach the merits of Obligated Parties’
argument in this regard. See AFPM 2018, 937 F.3d at 583.

B. Inadequate Domestic Supply Waiver

EPA’s general waiver authority also gives it discretion to
“reduc[e] the national quantity of renewable fuel required . . .
based on a determination . . . that there is an inadequate
domestic supply.” 42 U.S.C. § 7545(o)(7)(A)(ii). We have
explained that the term “inadequate domestic supply” refers to
the supply of renewable fuel “available to refiners, blenders,
and importers to meet the statutory volume requirements.”
Ams. for Clean Energy v. EPA, 864 F.3d 691, 707 (D.C. Cir.
2017) (emphasis omitted).
 23
In the 2019 rulemaking, EPA declined to exercise the
inadequate domestic supply waiver to reduce the advanced
biofuel volume or the total renewable fuel volume. Regarding
the advanced biofuel volume, EPA reasoned that domestic
supply of advanced biofuel did not in fact appear inadequate
and that carryover RIN holdings could fill any unexpected gaps
in supply. 83 Fed. Reg. at 63,708, 63,721 n.83, 63,730 n.128.
Obligated Parties challenge that determination, claiming EPA
failed adequately to consider whether domestic supply sufficed
to meet the 2019 statutory volume requirements for advanced
biofuel. (Obligated Parties also take issue with the
methodology EPA used to support the total renewable fuel
volume — a challenge we address in the next section. See
infra Part III.C.)

The court reviews EPA’s decision not to exercise the
inadequate domestic supply waiver under the deferential
arbitrary and capricious standard. See AFPM 2018, 937 F.3d
at 574. In its Response to Comments, EPA explained that
domestic advanced biofuel production alone — without taking
imports into consideration — could meet the 2019 statutory
volumes for advanced biofuel. RTC at 10–11. To meet the
2019 standards, EPA estimated that domestic biofuel
production would need to increase by approximately 700
million RINs, which the agency noted was “about the same as
. . . the greatest year-over-year increase in domestic advanced
biofuel production.” Id. at 11. EPA concluded that such an
increase would be “difficult, but not impossible for the
domestic industry to fulfill.” Id. It also explained that
neither “feedstock supplies [n]or production capacity would
preclude the domestic industry from meeting the standard.”
Id. And consideration of imports only reinforced EPA’s
conclusion that the volume requirements likely could be met.
Id. at 10–11.
 24
EPA adequately explained its refusal to exercise the
inadequate domestic supply waiver. Again, the court is
“particularly deferential” to EPA’s expertise “in matters
implicating predictive judgments” and will sustain the
agency’s judgments in that regard as long as it
“acknowledge[d] factual uncertainties and identif[ied] the
considerations it found persuasive.” Rural Cellular Ass’n,
588 F.3d at 1105. EPA did so here.

In addition, EPA reinforced its decision against exercising
the inadequate domestic supply waiver by explaining that, even
if domestic supply were inadequate, it would not exercise its
discretion to further reduce the RFS volumes. RTC at 11; 83
Fed. Reg. at 63,708. In support of that determination, the
agency noted that there was a “significant carryover RIN bank”
that could be used if domestic production fell short. RTC at
11. In light of EPA’s explanation that it would not exercise
the waiver even if domestic supply were inadequate, there was
even less need for it to make lengthy, detailed projections about
the adequacy of domestic supply. See AFPM 2018, 937 F.3d
at 584 (“Certainly [the] EPA must provide a reasoned
explanation for its actions, but rationality does not always
imply a high degree of quantitative specificity.”) (alteration in
the original; internal quotation marks omitted); Am. Petro.
Inst., 706 F.3d at 481 (“Nothing in the text of . . . the [RFS]
plainly requires EPA to support its decision” not to exercise the
general waiver “with specific numerical projections.”).

Obligated Parties additionally assert that EPA acted
arbitrarily by setting advanced biofuel volumes that were not
“reasonably attainable” but merely “attainable.” That
argument misses the mark. EPA determines “reasonably
attainable” volumes for purposes of the cellulosic waiver, not
the inadequate domestic supply waiver. 83 Fed. Reg. at
63,721. And in determining “attainable” and “reasonably
 25
attainable” volumes for purposes of the cellulosic waiver, EPA
accounts for demand-side considerations, which the agency
cannot consider in connection with a finding of inadequate
domestic supply. See Ams. for Clean Energy, 864 F.3d at 696.
Because EPA addressed all relevant considerations, we uphold
the agency’s decision not to exercise the inadequate domestic
supply waiver.

C. Total Renewable Fuel Volume

Obligated Parties contend that there was insufficient
record support for EPA’s total renewable fuel volume in the
2019 Rule. Recall that the RFS Program sets annual volume
requirements for renewable fuel generally. And renewable
fuel includes advanced biofuels, like cellulosic biofuel and
biomass-based diesel. But renewable fuel also includes
conventional biofuels like corn-based ethanol, which is the
most widely produced and consumed biofuel in the United
States. Memorandum from David Korotney, Off. of Transp.
& Air Quality, U.S. EPA, to EPA Docket EPA-HQ-OAR-
2018-0167, Updated Market Impacts of Biofuels in 2019, at 1
(Nov. 2018). Blends of ethanol and gasoline typically make
up a significant proportion of the annual renewable fuel
produced to fulfill the overall volume requirements. See, e.g.,
AFPM 2018, 937 F.3d at 582 (observing that corn ethanol
production alone was projected to exceed the total production
of advanced biofuel in 2018).

As relevant here, ethanol-gasoline blends contain varying
ratios of ethanol to gasoline. Specifically, E10 contains
roughly 10% ethanol (and 90% gasoline), E15 contains about
15% ethanol, and E85 contains around 85% ethanol. See
Korotney Memorandum, Updated Market Impacts of Biofuels
in 2019, at 1. E10 is by far the most common blend, so much
 26
so that the average ethanol concentration in U.S. gasoline is
10.13%. Id.

The statute set the 2019 cellulosic biofuel volume at 8.5
billion gallons. 83 Fed. Reg. at 63,705 (Table I–1). But EPA
determined that, in 2019, only 0.42 billion gallons would be
produced and available for use. Id. Pursuant to the
mandatory cellulosic waiver provision, see 42 U.S.C.
§ 7545(o)(7)(D)(i), EPA was required to reduce the 2019
volume for cellulosic biofuel by the difference — 8.08 billion
gallons. Using the discretionary cellulosic waiver, see id.,
EPA then lowered the applicable volumes for advanced biofuel
and total renewable fuel by the same amount. 83 Fed. Reg. at
63,705–06 (Table I–1). The agency, however, declined to
exercise its general waiver authority to further reduce the total
renewable fuel volume. Id. at 63,731. EPA explained that,
assuming the average ethanol concentration in gasoline
remained around 10.13%, the market would be able to produce
enough ethanol and gasoline to meet the overall renewable fuel
volume target without any further reduction. Id.

Obligated Parties contend that to ensure that the 2019 total
volume requirement could be met, EPA should have separately
estimated how much gasoline, E15, and E85 the market could
produce. We rejected precisely the same argument in AFPM
2018 and we do so again here. EPA does not “craft applicable
volumes . . . from scratch.” AFPM 2018, 937 F.3d at 583.
Rather, the statute sets applicable volumes, which EPA may
adjust only through the exercise of its waiver authority. Id.
As the court has repeatedly explained, “‘[n]othing in the text of
. . . the [RFS] plainly requires [the] EPA to support its decision’
against exercising the general waiver ‘with specific numerical
projections.’” Id. at 584 (first and third alterations in original)
(quoting Am. Petro. Inst., 706 F.3d at 481). EPA therefore
could reasonably conclude that “projecting ethanol use based
 27
on th[e] [10.13 percent] concentration level . . . inherently
account[s] for the net effect of volumes of [gasoline], E15, and
E85 without the need to project volumes of these three blend
levels individually.” Korotney Memorandum, Updated
Market Impacts of Biofuels in 2019, at 3. Moreover, EPA’s
determination that calculating the amount of ethanol fuel
available using a nationwide average ethanol concentration of
10.13% “provides a better indication of the net effect of all E0,
E15, and E85” was reasonable given that “nearly all gasoline
contains 10 percent ethanol.” 83 Fed. Reg. at 63,731.

Nor, contrary to Obligated Parties’ contention, did EPA
disregard data predicting reduced gasoline consumption
(which in turn would reduce the demand for ethanol to blend
with gasoline). Rather, the agency explained that, even taking
into account reduced projections of gasoline consumption for
2019, the renewable fuel standard could be met if the market
achieved a 10.13% concentration of ethanol, as it had in 2017.
Korotney Memorandum, Updated Market Impacts of Biofuels
in 2019, at 4–5. For those reasons, we find that EPA
adequately supported its decision not to exercise its general
waiver authority to reduce the total renewable fuel volume.

D. Sugarcane Ethanol Estimate

When EPA’s projection of cellulosic biofuel production is
lower than the statutory volume, the agency must reduce the
applicable volume to the projected amount. 42 U.S.C.
§ 7545(o)(7)(D)(i). In that event, the statute also enables EPA
to decide, under the discretionary cellulosic waiver, whether to
lower the applicable volumes for advanced biofuel and total
renewable fuel “by the same or a lesser” amount. Id.
Although the statute does not prescribe specific factors for the
agency to consider in making that determination, see Monroe
Energy, 750 F.3d at 915, EPA typically considers what volume
 28
of advanced biofuel is “reasonably attainable,” see Ams. for
Clean Energy, 864 F.3d at 735. A volume is “reasonably
attainable” if it can be reached with “minimal market
disruptions, increased costs, and/or reduced [greenhouse gas]
(GHG) benefits, and with minimal diversion of advanced
biofuels or advanced biofuel feedstocks from existing uses.”
83 Fed. Reg. at 63,721.

Imported sugarcane ethanol is one of the principal sources
of advanced biofuel. Id. The United States’ supply of
sugarcane ethanol is largely imported from Brazil, and there is
a “high degree of variability in historical imports of sugarcane
ethanol.” Id. at 63,722. Obligated Parties observe that, for
the past five years, actual volumes of sugarcane ethanol have
not exceeded 45% of EPA’s estimate. They argue that EPA
again overestimated the amount of sugarcane ethanol available
for import in the 2019 Rulemaking. Had it correctly estimated
sugarcane ethanol levels, they submit, EPA might have found
that advanced biofuel volumes were not “reasonably
attainable” and thus decided to exercise the discretionary
cellulosic waiver to reduce volumes.

We reject Obligated Parties’ challenge to EPA’s 2019
estimate of the volume of sugarcane ethanol available in the
United States. We review that estimate under the arbitrary and
capricious standard. AFPM 2018, 937 F.3d at 574 (citing 42
U.S.C. § 7607(d)(9)(A)). In light of the deference owed to
EPA’s predictive judgments, see Rural Cellular Ass’n, 588
F.3d at 1108, EPA’s 2019 sugarcane ethanol projection was not
arbitrary.

In its 2016 and 2017 RFS rulemakings, EPA estimated that
the United States would import 200 million gallons of
sugarcane ethanol. 83 Fed. Reg. at 63,721. Actual import
volumes were lower: 34 million gallons in 2016 and 77 million
 29
gallons in 2017. Id. at 63,722. Accordingly, in 2018, EPA
estimated that only 100 million gallons of sugarcane ethanol
would be “reasonably attainable.” Id. EPA explained that
the 2018 projection balanced the lower-than-expected imports
in recent years against indications that higher import volumes
were possible.

In 2019, EPA again estimated that 100 million gallons of
sugarcane ethanol would be imported. Id. The agency
observed that its data indicated that 77 million gallons had been
imported in 2017. Id. And while only 37 million gallons had
been imported in 2018 as of October of that year, EPA noted
that import volumes typically rise in the second half of the year,
such that the 2018 import levels to date did not fully capture
the likely pace of imports through the end of the year. Id.

Although volumes in 2017 and 2018 would likely remain
under 100 million gallons per year, the agency explained that
projecting the volume of sugarcane ethanol imports in a given
year is “inherently imprecise” because a multitude of factors
— such as “uncertainty in the Brazilian political climate,
weather and harvests in Brazil, world ethanol demand and
prices,” and “the cost of sugarcane ethanol relative to that of
corn ethanol” — affect the level of imports. Id. Due to the
high variability of import levels, data from past years was not
determinative in projecting future import levels. See id. at
Figure IV.B.1–1. In addition to considering recent years’
data, EPA observed that the advanced biofuel volume
requirement for 2019 was 630 million gallons higher than for
2018, which should fuel additional demand for sugarcane
ethanol. Id. at 63,722. The agency also noted that imports
had reached considerably more than 100 million gallons in the
past, often jumping up significantly from year to year. Id.
For instance, sugarcane ethanol import levels increased by 500
 30
million gallons between 2005 and 2006, and by 300 million
gallons between 2011 and 2012. Id. at Figure IV.B.1–1.

In that context, EPA did not act arbitrarily and capriciously
in estimating that 100 million gallons of sugarcane ethanol was
“reasonably attainable” for 2019. It acknowledged the factual
uncertainties and adequately explained its conclusion. See
Rural Cellular Ass’n, 588 F.3d at 1105. Even if it could have
arrived at a different conclusion, the conclusion EPA reached
was not arbitrary.

E. Exported Renewable Fuel

Since 2007, EPA has interpreted the RFS to require that
the applicable volumes of renewable fuel be consumed within
the United States. 72 Fed. Reg. at 23,936. Under EPA
regulations, as noted, if renewable fuel that has generated RINs
is later exported, that fuel cannot be used to satisfy RFS volume
requirements (because the fuel will not be consumed in the
United States). 79 Fed. Reg. 42,078, 42,115 (July 18, 2014)
(promulgating current version of 40 C.F.R. § 80.1430). The
upshot is that, when renewable fuel that generated RINs is
exported, the exporter must retire the same number of RINs.
See 40 C.F.R. § 80.1430.

During the 2019 rulemaking, EPA refused to consider
comments from Obligated Parties urging it to change its
requirement that the applicable RFS volumes be consumed
within the United States. Obligated Parties challenge that
decision, but their challenge is untimely.

Obligated Parties’ challenge to EPA’s 2007 interpretation
of the RFS is barred by the Clean Air Act’s sixty-day statutory
time limit. See 42 U.S.C. § 7607(b)(1). The “reopening”
doctrine, however, creates a limited exception to that kind of
 31
statutory limitations period. Nat’l Ass’n of Reversionary
Prop. Owners v. Surface Transp. Bd., 158 F.3d 135, 141 (D.C.
Cir. 1998) (NARPO). When a “later proceeding explicitly or
implicitly shows that the agency actually reconsidered the rule,
the matter has been reopened and the time period for seeking
judicial review begins anew.” Id. (citing Pub. Citizen v. NRC,
901 F.2d 147, 150 (D.C. Cir. 1990)).

“[T]he general principle [is] that if the agency has opened
the issue up anew, even though not explicitly, its renewed
adherence is substantively reviewable.” Pub. Citizen, 901
F.2d at 150 (quoting Ass’n of Am. R.Rs. v. ICC, 846 F.2d 1465,
1473 (D.C. Cir. 1988)). In assessing whether there has been
such a reopening, courts consider whether “the entire context
demonstrates that the agency ha[s] undertaken a serious,
substantive reconsideration of the [existing] rule.” P & V
Enters. v. U.S. Army Corps of Eng’rs, 516 F.3d 1021, 1024
(D.C. Cir. 2008) (internal citation and quotation marks
omitted). The “entire context” for that purpose “include[s] all
relevant proposals and reactions of the agency.” Pub. Citizen,
901 F.2d at 150.

For instance, the court considers the text of the Notice of
Proposed Rulemaking (NPRM) and the agency’s response to
comments submitted during the rulemaking. NARPO, 158
F.3d at 142–43. With regard to the NPRM, the court has
observed that “[a]n explicit invitation to comment on a
previously settled matter, even when not accompanied by a
specific modification proposal, is usually sufficient to [effect]
a reopening.” Id. at 142. “Ambiguity in an NPRM may also
tilt toward a finding that the issue has been reopened,” but the
mere fact that “an agency invites debate on some aspects of a
broad subject . . . does not automatically reopen all related
aspects including those already decided.” Id.
 32
Here, the record does not support the conclusion that EPA
reopened its policy on exported renewable fuel. Obligated
Parties observe that EPA invited comments on “any aspect of
this rulemaking.” Proposed Rule, Renewable Fuel Standard
Program: Standards for 2019 and Biomass-Based Diesel
Volume for 2020, 83 Fed. Reg. 32,024, 32,057–58 (July 10,
2018) (NPRM). But that blanket, generic statement alone did
not suggest that the agency was undertaking a reconsideration
of the relevant matter — i.e., the RFS exports policy. Thus, in
NARPO, the court held there was no reopening when the
agency made a similarly generic statement that it “welcome[d]
public comments on these proposals, and on any other areas
where changes might be made, to streamline our abandonment
regulations.” 158 F.3d at 142, 145.

EPA did solicit comments on certain alterations to the RIN
system, such as establishing new regulations related to the
buying, selling, and holding of RINs. NPRM, 83 Fed. Reg. at
32,027. But the fact that EPA invited comment on certain
possible reforms to the way RINs are traded “d[id] not
automatically reopen all related aspects” of the RIN market,
NARPO, 158 F.3d at 142, including the treatment of RINs
associated with exported fuel.

Obligated Parties further note that EPA solicited comment
on “whether circumstances exist that would warrant further
reductions in volumes through the exercise of the general
waiver authority (e.g., due to severe economic harm).”
NPRM, 83 Fed. Reg. at 32,048. And Obligated Parties sought
to tie that invitation to the subject of exported renewable fuel
in their comments by conveying that, if renewable exports
continued to be excluded, EPA’s proposed volumes would
cause substantial economic harm.
 33
EPA, however, set out the type of information it thought
was relevant to identifying severe economic harm — for
instance, it gave the example of “modeling showing expected
levels of production and price for [renewable fuels] with and
without a waiver.” NPRM, 83 Fed. Reg. at 32,048. That
discussion demonstrates that EPA was looking for evidence of
the impact of its proposed levels to inform its determination
whether to exercise the severe economic harm waiver. It was
not seeking alternatives to the waiver through broader RIN
market reforms such as altering the treatment of RINs
connected to exported renewable fuel. Correspondingly, all
agree that EPA declared that Obligated Parties’ comments on
the treatment of exported renewable fuel were beyond the
scope of the rulemaking. See RTC at 188.

In short, EPA at no point suggested that it was
substantively reconsidering its longstanding policy concerning
the treatment of exported renewable fuel, and it reasonably
refused to consider Obligated Parties’ arguments for changing
that policy as beyond the scope of the 2019 rulemaking. As a
result, Obligated Parties’ challenge to EPA’s treatment of
exports is untimely.

F. Point of Obligation

The Clean Air Act provides that EPA shall make
“compliance provisions applicable to refineries, blenders,
distributors, and importers, as appropriate.” 42 U.S.C.
§ 7545(o)(2)(A)(iii)(I). As noted, EPA has declined to
obligate blenders since the implementation of the RFS Program
in 2007. EPA explained that there were “approximately 1,200
ethanol blenders, as compared to 100–200 refiners and
importers,” such that “making ethanol blenders obligated
parties would greatly expand the number of regulated parties
and increase the complexity of the RFS program.” Denial of
 34
Petitions for Rulemaking to Change the RFS Point of
Obligation, EPA-420-R-17-008 at 11 (Nov. 2017) (2017
Denial) (internal quotation marks omitted). EPA reiterated its
approach in the 2010 “point of obligation” rule. 75 Fed. Reg.
at 14,721–22 (codified at 40 C.F.R. § 80.1406(a)(1)).

Refiners have repeatedly but unsuccessfully urged EPA to
include blenders in the point of obligation — i.e., to subject
blenders to RFS obligations. See Alon, 936 F.3d at 649. EPA
has offered a number of rationales for its conclusion that the
current point of obligation is “appropriate,” see 42 U.S.C.
§ 7545(o)(2)(A)(iii)(I), citing concerns that including blenders
would significantly increase RFS Program complexity and
require extensive market repositioning to achieve compliance.
2017 Denial at 3. EPA has also explained that declining to
obligate blenders does not give them a windfall relative to
refiners, because refiners recover their compliance costs by
passing along the costs to their customers — the
aforementioned “pass-through” theory. See Alon, 936 F.3d at
649; 2017 Denial at 1–2.

In the 2019 rulemaking, EPA treated comments requesting
the adjustment of the point of obligation to include blenders as
beyond the scope of the Rule. RTC at 188. Obligated Parties
contend that EPA was required to reconsider whether blenders
should be included in the point of obligation.

Our review of EPA’s decision not to reconsider the point
of obligation in an annual rulemaking is for abuse of discretion.
Alon, 936 F.3d at 659. EPA had last considered the point of
obligation only a year before, in connection with its 2017
Denial of Petitions for Rulemaking. See 2017 Denial. At
that time, EPA provided a number of reasons for declining to
alter the point of obligation. It explained that “changing the
point of obligation . . . would be very disruptive to the program,
 35
and likely the fuels marketplace as well, undermining long
settled expectations and the program stability and certainty that
are critical to both short- and long-term success of the program.
Thus, even if there were some marginal net benefits to
changing the point of obligation, we believe that the disruptive
effects of a change at this time would still warrant denial.” Id.
at 2.

In contending that EPA was required to reconsider the
point of obligation just a year later in connection with the 2019
rulemaking, Obligated Parties rely on new evidence —
primarily the Pirrong study referenced earlier — that ostensibly
disproves the idea that refiners recover the cost of RINs they
purchase by passing along the cost to their consumers. Even
assuming Obligated Parties successfully disproved the pass-
through theory, that is only one of many factors relevant to the
determination whether to alter the point of obligation.
Obligated Parties do not explain why their supposed disproval
of the pass-through theory suffices to negate EPA’s stated
concerns in 2017 about market stability and reliance interests.
Nor have Obligated Parties shown a change in circumstances
between 2017 and 2018 meriting reconsideration.

Obligated Parties further claim that EPA abused its
discretion when it dismissed comments on the point of
obligation as beyond the scope of the 2019 rulemaking without
explaining why reconsideration was unnecessary. But
requiring EPA to accept and respond to comments on the point
of obligation each year would effectively require conducting a
yearly reassessment of the point of obligation — a reading of
the statute rejected in Alon. 936 F.3d at 658. Moreover, in
its Response to Comments, EPA again reiterated that it had
recently reconsidered the validity of the pass-through theory in
2017, when it denied petitions to change the point of obligation.
See RTC at 164. Given EPA’s recent reassessment of the
 36
point of obligation, EPA’s decision not to undertake another
reassessment in the 2019 rulemaking was not an abuse of
discretion. Obligated Parties remain free to present their
evidence to EPA by filing a petition for a rulemaking to change
the point of obligation. See, e.g., Alon, 936 F.3d at 648
(reviewing EPA’s denial of such a petition for rulemaking).

G. Regulatory Flexibility Act

One of the Obligated Parties, the Small Retailers Coalition
(SRC), argues that EPA failed to comply with the Small
Business Regulatory Flexibility Act. The Flexibility Act
requires agencies promulgating rules to conduct analyses
describing the effects of a rule on small businesses and the steps
taken to minimize any burdens. 5 U.S.C. §§ 601 et seq. An
agency need not conduct the required analyses if it certifies that
a rule will not have a significant economic impact on a
substantial number of small entities. Id. § 605(b). In the
2019 Rule, EPA certified that its rule would not have a
significant economic impact on small refiners. SRC now
contends that the Flexibility Act also required the agency to
make the same certification as to small retailers.

SRC, however, did not raise that objection during the 2019
rulemaking. Under the Clean Air Act’s exhaustion
requirement, “[o]nly an objection to a rule or procedure which
was raised with reasonable specificity during the period for
public comment . . . may be raised during judicial review.” 42
U.S.C. § 7607(d)(7)(B). That provision is to be strictly
enforced. Nat. Res. Def. Council v. EPA, 571 F.3d 1246, 1259
(D.C. Cir. 2009) (quoting Motor & Equip. Mfrs. Ass’n v.
Nichols, 142 F.3d 449, 462 (D.C. Cir. 1998)). SRC contends
that exhaustion rules do not apply to its statutory-interpretation
questions, but there is no support for that kind of carve-out
 37
from exhaustion requirements. See, e.g., Nat. Res. Def.
Council v. Thomas, 805 F.2d 410, 427 (D.C. Cir. 1986).

SRC also claims that it did comment on the Flexibility Act
issue in the rulemaking. But the referenced comment was
submitted in connection with the 2018 rulemaking, not the
2019 rulemaking at issue in this case. See Obligated Parties
Pet’rs’ Reply Br. 21. Because SRC did not comply with the
statutory exhaustion requirement, the court does not consider
its argument based on the Flexibility Act.

IV.

Environmental Petitioners challenge the 2019 Rule on
three grounds: (1) EPA’s “aggregate compliance approach” for
determining whether biofuel qualifies as renewable fuel
contravenes the text and purpose of the Clean Air Act; (2)
EPA’s conclusion that the 2019 Rule will have no effect on
endangered species or their critical habitat is arbitrary and
capricious, and therefore EPA failed to satisfy its consultation
obligations under the Endangered Species Act (ESA),
16 U.S.C. § 1536(a)(2); and (3) EPA’s decision not to reduce
applicable volumes pursuant to its general waiver authority to
prevent severe environmental harm is arbitrary and capricious.
EPA raises two threshold, jurisdictional objections joined by
intervenors representing the biodiesel industry and ethanol
producers. One of these objections is persuasive, and EPA’s
responses on the merits are not. Although Environmental
Petitioners’ first challenge is untimely and the court therefore
lacks jurisdiction to address it, EPA’s effects determination and
severe environmental harm waiver decision are contrary to the
evidence in the administrative record. Accordingly, we grant
Environmental Petitioners’ petition in part and remand the
2019 Rule without vacatur to enable EPA to reassess the Rule
in relevant part.
 38

A. Aggregate Compliance Approach

As noted, obligated parties satisfy their annual renewable
fuel obligations by accumulating and then retiring credits
known as RINs, each of which corresponds to a batch of
renewable fuel produced or imported for use in the United
States. See Ams. for Clean Energy, 864 F.3d at 699; see also
40 C.F.R. §§ 80.1426, 80.1427. The Clean Air Act defines
“renewable fuel” as fuel “produced from “renewable biomass,”
42 U.S.C. § 7545(o)(1)(J), which, among other things, includes
“[p]lanted crops and crop residue harvested from agricultural
land cleared or cultivated at any time prior to December 19,
2007, that is either actively managed or fallow, and
nonforested,” id. § 7545(o)(1)(I)(i). To ensure RINs are
assigned only to biofuel made from biomass grown on
qualifying land, EPA promulgated a rule in 2010, imposing
recordkeeping and reporting requirements on foreign
producers and importers. 75 Fed. Reg. at 14,708 (codified at
40 C.F.R. § 80.1454(c)(1)(ii)). EPA took a different tack to
renewable fuel produced domestically, choosing to adopt an
“aggregate compliance approach,” whereby all feedstock
derived from planted crops and crop residue grown in the
United States is deemed to be “renewable biomass” so long as
total national agricultural acreage does not exceed 402 million
acres, the amount of land EPA concluded was under cultivation
in 2007. See id. at 14,701–04 (codified at 40 C.F.R.
§ 80.1454(g)). Only if this baseline is exceeded will EPA
scrutinize the provenance of domestic biofuel. 40 C.F.R.
§ 80.1454(g)(2). In the 2019 Rule, EPA found no reason to
depart from this approach, explaining that “U.S. agricultural
land reached approximately 381 million acres in 2018, and thus
did not exceed the 2007 baseline acreage.” 83 Fed. Reg. at
63,741.
 39
Environmental Petitioners contend that EPA’s approach
facilitates the conversion of previously uncultivated land for
biofuel production, in violation of the Clean Air Act’s text, see
42 U.S.C. § 7545(I)(i), and its environmental objectives as
indicated in the legislative history. See Env’t Pet’rs’ Br. 28–
32. EPA and intervenors respond that this challenge is
untimely, and we agree.

The Clean Air Act’s sixty-day limitations period,
42 U.S.C. § 7607(b)(1), “is jurisdictional in nature,” and
therefore a petitioner’s failure to timely petition renders the
court “powerless to address their claim,” Med. Waste Inst., 645
F.3d at 427 (quoting Motor & Equip. Mfrs. Ass’n, 142 F.3d at
460). Environmental Petitioners’ challenge to EPA’s
aggregate compliance approach comes almost a decade after its
adoption.

Resisting this conclusion, Environmental Petitioners
respond that EPA’s 2018 Triennial Report “effectively
reopened the aggregate compliance scheme” by providing
“indisputable evidence” that the aggregate compliance
approach is causing land conversion. Env’t Pet’rs’ Reply Br.
16–17. But under the court’s precedent, a longstanding rule
may be reopened when an agency “indicates a willingness to
reconsider such a regulation by inviting and responding to
comments,” Kennecott Utah Copper Corp. v. U.S. Dep’t of
Interior, 88 F.3d 1191, 1213 (D.C. Cir. 1996), or “changes the
regulatory context in such a way that could not have been
reasonably anticipated by the regulated entity and is onerous to
its interests,” Env’t Def. v. EPA, 467 F.3d 1329, 1334 (D.C.
Cir. 2006) (citing Kennecott, 88 F.3d at 1214–15). Neither of
these circumstances is present, and Environmental Petitioners
offer no persuasive reason that an exception to EPA’s control
of its annual rulemaking is warranted here. Although the
Triennial Report’s findings may cast doubt on the efficacy of
 40
EPA’s aggregate compliance approach, the Report contains no
hint that EPA was reconsidering its regulation or was amenable
to comments on the issue. Nor did the Report change the
regulatory scheme as evidenced by EPA’s use of the aggregate
compliance approach in the 2019 Rule. Further, even
assuming such a constructive reopening occurred, the
challenge is still untimely: EPA issued the Triennial Report on
June 29, 2018, and Environmental Petitioners did not file their
petition until February 11, 2019, well after § 7607(b)(1)’s
sixty-day window expired. Consequently, their challenge to
EPA’s aggregate compliance approach is dismissed for lack of
jurisdiction.

B. Endangered Species Act

Section 7 of the ESA imposes a duty on federal agencies to
prevent harm to endangered wildlife and flora, reflecting a
“conscious decision by Congress to give endangered species
priority over the ‘primary missions’ of federal agencies.”
Tenn. Valley Auth. v. Hill, 437 U.S. 153, 185 (1978).
Specifically, under Section 7(a)(2), each federal agency “shall,
in consultation with and with assistance of the Secretary, insure
that any action . . . is not likely to jeopardize the continued
existence of any endangered species or threatened species or
result in the destruction or adverse modification of [critical]
habitat of such species.” 16 U.S.C. § 1536(a)(2). To
facilitate compliance with this statutory mandate, the ESA’s
implementing regulations require a federal agency to determine
whether its proposed action “may affect listed species or
critical habitat.” 50 C.F.R. § 402.14(a). If so, then the
agency must engage in either formal or informal consultation
with the U.S. Fish and Wildlife Service and National Marine
Fisheries Service (Services). Id. §§ 402.14(a), (b)(1); see Ctr.
for Biological Diversity v. EPA, 861 F.3d 174, 177–78 (D.C.
Cir. 2017).
 41

Environmental Petitioners contend that, in view of
unrebutted record evidence, EPA’s conclusion that the 2019
Rule will pose no danger to listed species or threaten their
critical habitat and its consequent failure to consult with the
Services is arbitrary and capricious. We agree.

1.

As a threshold matter, EPA maintains that Environmental
Petitioners lack Article III standing to bring this challenge.
Environmental Petitioners, relying on associational standing on
the basis of several of their members’ activities, contend that
because their legal challenge is procedural, they have met their
burden to show standing. EPA responds that because it
“expressly addressed” its obligations under the ESA by making
an effects determination before issuing the 2019 Rule, “no
procedural omission thus exists,” Resp’t’s Br. 84, and therefore
Environmental Petitioners must satisfy the traditional standing
inquiry, id. at 85. EPA also maintains that Environmental
Petitioners cannot establish that the 2019 Rule causes
environmental harm generally, or in the areas used by their
members specifically. Intervenors likewise contest
Environmental Petitioners’ standing on the same grounds
raised by EPA.

For associational standing, Environmental Petitioners
must show that their “members would otherwise have standing
to sue in their own right, the interests at stake are germane to
the organization’s purpose, and neither the claim asserted nor
the relief requested requires the participation of individual
members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw
Env’t Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). When, as
here, multiple organizations bring suit, the court “need only
find one party with standing” to reach the merits. Ctr. for
 42
Biological Diversity, 861 F.3d at 182 (quoting Ams. for Safe
Access v. DEA, 706 F.3d 438, 443 (D.C. Cir. 2013)). Because
“standing is not dispensed in gross,” the court must analyze
separately Environmental Petitioners’ Article III standing to
challenge the effects determination and the waiver for severe
environmental harm. Competitive Enter. Inst. v. FCC, 970
F.3d 372, 382 (D.C. Cir. 2020) (quoting Davis v. FEC, 554
U.S. 724, 734 (2008)); see Town of Chester v. Laroe Estates,
Inc., 137 S. Ct. 1645, 1650 (2017).

Neither EPA nor intervenors contest that Environmental
Petitioners satisfy the second and third requirements of
associational standing. Consequently, the inquiry becomes
whether Environmental Petitioners have identified at least one
member who satisfies the familiar tripartite test for Article III
standing: (1) an injury in fact that is “concrete and
particularized” and “actual or imminent,” which is (2) “fairly
traceable to the challenged action of the defendant” and (3)
“likely” to be “redressed by a favorable decision.” Laidlaw
Env’t Servs., 528 U.S. at 180–81 (citing Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992)); see Sierra Club v.
EPA, 292 F.3d 895, 899 (D.C. Cir. 2002). In this context,
Environmental Petitioners must “support each of these
elements ‘by affidavit or other evidence,’ and their burden of
proof is not to demonstrate certainty but to ‘show a substantial
probability’ that each of these elements has been met.” In re
Idaho Conservation League, 811 F.3d 502, 508 (D.C. Cir.
2016) (quoting Sierra Club, 292 F.3d at 899).

A “claim that the EPA failed to meet its statutory
consultation obligation” is a procedural deprivation. Ctr. for
Biological Diversity, 861 F.3d at 182; see AFPM 2018, 937
F.3d at 593. Hence, in AFPM 2018, the court applied the
standing requirements for procedural injuries to the
environmental organizations’ view that EPA failed to conduct
 43
an effects determination before promulgating the 2018 Rule,
describing it as “an ‘archetypal procedural injury.’” 937 F.3d
at 592 (citation omitted). Here, too, Environmental
Petitioners maintain that EPA fell short of its ESA obligations
by failing to engage in consultation with the Services as a result
of its flawed effects determination. As in AFPM 2018,
Environmental Petitioners point to a procedural omission
because they maintain that they were entitled to further
procedure by EPA. The court therefore will “relax — while
not wholly eliminating — the issues of imminence and
redressability.” Ctr. for Law & Educ. v. Dep’t of Educ., 396
F.3d 1152, 1157 (D.C. Cir. 2005); see Lujan, 504 U.S. at 572
n.7.

Where a petitioner asserts a procedural injury “our
analyses of the injury and of causation tend to involve similar
concepts.” AFPM 2018, 937 F.3d at 592. To demonstrate
injury, then, Environmental Petitioners “must show that the
failure to comply with the ESA affects its members’ concrete
interests; in other words, that the failure demonstrably
increased some specific risk of environmental harms that
imperil the members’ particularized interests in a species or
habitat with which the members share a geographic nexus.”
Id. (citations, quotation marks, and alterations omitted). With
respect to causation, Environmental Petitioners “must show
two links: ‘one connecting the omitted procedural step to some
substantive government decision that may have been wrongly
decided because of the lack of that procedural requirement’ and
‘one connecting that substantive decision to the plaintiff’s
particularized injury.’” Id. (quoting Ctr. for Biological
Diversity, 861 F.3d at 184). Finally, under the relaxed
redressability requirement, Environmental Petitioners “need
not show that ‘court-ordered compliance with the procedure
would alter the final [agency decision].’” Ctr. for Biological
Diversity, 861 F.3d at 185 (quoting Nat’l Parks Conservation
 44
Ass’n v. Manson, 414 F.3d 1, 5 (D.C. Cir. 2005)). Rather, it
suffices to show that “EPA could reach a different conclusion”
if ordered to revisit its procedural error. Id.

For substantially the reasons the court discussed in AFPM
2018, 937 F.3d at 591–96, the same two members of the Sierra
Club — C. Elaine Giessel and William Fontenot — who had
standing to challenge the 2018 Rule have met their burden at
each step of the analysis here. Giessel’s and Fontenot’s
declarations describe aesthetic and recreational interests in
particular listed species. “Giessel has aesthetic and
recreational interests in observing the whooping crane”
populations of Texas and Kansas, id. at 593; she is an avid bird
watcher and a member of and frequent visitor to two refuges
known to support whooping cranes, the Quivira National
Wildlife Reserve and the Cheyenne Bottoms States Waterfowl
Management Area, Giessel Decl. ¶¶ 21–22. “Fontenot has
similarly cognizable educational and conservation interests in
observing and studying the sturgeon that live in the Gulf of
Mexico and the Mississippi River Basin.” AFPM 2018, 937
F.3d at 593. He has joined researchers by boat to study the
Gulf sturgeon in their habitat and uses the information that he
learns about the Gulf sturgeon to educate others, including the
media, about environmental issues that affect them. Fontenot
Decl. ¶¶ 18–20.

These interests are threatened by EPA’s failure to consult
with the Services before promulgating the 2019 Rule. As
recounted in AFPM 2018, 937 F.3d at 593–94, EPA’s 2018
Triennial Report to Congress and the declaration of Dr. Tyler
Lark, an associate researcher at the University of Wisconsin-
Madison’s Center for Sustainability and Global Environment,
establish “that the [renewable fuel] Program’s annual standards
likely cause the conversion of uncultivated land into
agricultural land for growing crops that can be used to make
 45
biofuels,” and that “this increase in crop production and land
conversion harms the habitats of numerous animals and fish,
. . . including — critically — the particular habitats of the
whooping cranes and Gulf sturgeon in which Giessel and
Fontenot have interests.”

Briefly stated, Dr. Lark explains that the renewable fuel
standards program increases demand for corn and soy, the
primary biofuel feedstocks, and this in turn drives both the
intensification of crop production and the conversion of land
into cropland. Lark Decl. ¶¶ 5–7. The Triennial Report
supports Dr. Lark’s conclusions, finding an “observed
increase” in corn and soy acreage in the decade following the
enactment of the renewable fuel standards program, “some” of
which was a “consequence of increased biofuel production
mandates.” Off. of Rsch. & Dev., U.S. EPA, Biofuels and the
Environment: Second Triennial Report to Congress at ix (June
29, 2018) (Triennial Rept.). This increase in biofuel
production threatens the whooping cranes and Gulf sturgeon
enjoyed by Giessel and Fontenot. The conversion of wetlands
in Kansas to biofuel cropland threatens the critical habitat of
whooping cranes. Lark Decl. ¶ 17; see Triennial Rept. at 35–
36 (describing Kansas as a “hotspot[]” of conversion). Such
intensified land use causes excess nutrients to flow into the
Gulf of Mexico, creating an oxygen-deficient area, known as
the “hypoxic zone” or “dead zone.” Lark Decl. ¶ 27. This
poses a particular risk to Gulf sturgeon, which are “vulnerable
to low dissolved oxygen levels and hypoxia.” Id. ¶ 29.

The causation element of standing is satisfied too, because
“EPA’s alleged failure to comply with its ESA obligations is
plainly connected to the setting of [renewable fuel] standards
in the [2019] Rule, and those standards might have come out
differently if the EPA had complied.” AFPM 2018, 937 F.3d
at 594. Further, it is substantially probable that EPA’s
 46
inadequate effects determination and subsequent failure to
consult with the Services — like its failure to conduct an effects
analysis in the first instance — resulted in applicable volumes
that “adversely affected local conditions in Kansas, the Gulf,
and the Mississippi River Basin, harming cranes and sturgeon
to the detriment of Giessel and Fontenot.” Id.

Finally, upon remand of the 2019 Rule, EPA could change
its position that the applicable volumes have no effect on listed
species or critical habitat and pursue consultation with the
Services. EPA could reach a different conclusion, for instance
by deciding to use the severe environmental harm waiver to
further reduce volumes, if it were required to consult. See id.
at 595; infra Part IV.C.2. That suffices to establish
redressability. See Ctr. for Biological Diversity, 861 F.3d at
185. Insofar as EPA contends that the ordinary standards of
redressability apply, see Food & Water Watch v. U.S. Dep’t of
Agric., No. 20–5100, 2021 WL 2546671 (D.C. Cir. June 22,
2021) (slip op. at 7 & n.2), Environmental Petitioners have
made that showing. Were EPA ordered to consult with the
Services and subsequently decided to reduce the 2019
applicable volumes, it is substantially probable that corn and
soybean production would decrease for the reasons that the
court describes in Part IV.C.1 infra, thereby ameliorating the
harms to the wildlife enjoyed by Giessel and Fontenot.

Notwithstanding little daylight between these consolidated
cases and AFPM 2018, EPA nonetheless insists that
Environmental Petitioners cannot establish injury-in-fact.
EPA maintains that the 2019 Rule poses no risk to listed
species because “recent evidence” reveals the program is “not
associated with increased corn and soybean demand or
cultivation.” Resp’t’s Br. 87. This new data shows that
although applicable volumes increased from 2012 to 2017 and
then plateaued, total acres of corn and soybeans planted in the
 47
United States decreased between 2012 and 2019. See id. at
87–90. But EPA confuses total corn production with the
relevant metric: the amount of corn and soybeans produced for
ethanol fuel and biodiesel. Indeed, the Triennial Report stated
that although the number of corn acres “fluctuated considerably
between 2006 and 2016,” the percentage of corn used for
ethanol production increased over the same period of time.
Triennial Rept. at 11; see id. at 12–14. In short, overall corn
acreage does not fully capture the effect of the renewable fuel
standards program on biofuel feedstock production.

As a fallback, EPA maintains that even if the 2019 Rule
causes environmental harm, Environmental Petitioners fail to
establish an injury-in-fact because there is “no evidence that
these assumed effects occur in the specific areas used by the
allegedly affected members.” Resp’t’s Br. 91. The court
rejected this argument in AFPM 2018. A petitioner “must
show only a ‘substantial probability’ of injury,” not that EPA’s
actions “in fact” cause harm. AFPM 2018, 937 F.3d at 595
(quoting Ctr. for Biological Diversity, 861 F.3d at 183–84).
Environmental Petitioners have made that showing by linking
the renewable fuel standards program to the degradation of
critical habitat for whooping cranes and Gulf sturgeon in the
geographic areas where Giessel and Fontenot view those
species. For these reasons, Environmental Petitioners have
standing to challenge EPA’s effects determination.

2.

Implementing regulations promulgated pursuant to the
Endangered Species Act require an agency to “determine
whether any action may affect listed species or critical habitat,”
and, if so, to consult with the Services. 50 C.F.R. § 402.14(a);
see 16 U.S.C. § 1536(a)(2). Only if an agency determines that
its action will have no effect on listed species or critical habitat
 48
can it dispense with consultation. Ctr. for Biological Diversity
v. U.S. Dep’t of Interior, 563 F.3d 466, 475 (D.C. Cir. 2009).
“May affect” purposefully sets a low bar: “Any possible effect,
whether beneficial, benign, adverse or of an undetermined
character, triggers the formal consultation requirement.”
Interagency Cooperation—Endangered Species of 1973, as
Amended, 51 Fed. Reg. 19,926, 19,949 (June 3, 1986). “Thus,
actions that have any chance of affecting listed species or
critical habitat — even if it is later determined that the actions
are ‘not likely’ to do so — require at least some consultation
under the ESA.” Karuk Tribe of Cal. v. U.S. Forest Serv., 681
F.3d 1006, 1027 (9th Cir. 2012).

In AFPM 2018, environmental groups “complain[ed] that
the EPA ha[d] never consulted on the Program during the past
decade,” including during the 2018 rulemaking being
challenged. 937 F.3d at 591. The court agreed, holding that
EPA had violated the ESA by failing to take the initial step of
conducting an effects determination and remanded the 2018
renewable fuel standards to EPA “to make an appropriate
effects determination.” Id. at 598.

As part of the 2019 rulemaking, EPA placed a
memorandum in the administrative record assessing the
environmental effects of the proposed rule. See Memorandum
from EPA Staff to EPA Docket EPA-HQ-OAR-2018-0167,
Endangered Species Act No Effect Finding and Determination
on Severe Environmental Harm under the General Waiver
Authority for the 2019 Final Rule (Nov. 2018) (Effects
Memorandum). There, EPA concluded that the proposed
applicable volumes for 2019 “will have no effect on listed
species or their critical habitat, either directly or indirectly” and
therefore “it need not consult with the Services” before issuing
a final rule. Id. at 1. The proposal would not directly affect
listed species or critical habitat because “[i]t does not require,
 49
authorize, fund, or carry out the production of any specific
biofuel or crop, the use of any land that is critical habitat, or the
taking of any listed species or other activity that may affect any
listed species.” Id. at 2. Nor would it have indirect effects
because the applicable volumes would not influence the
production of corn for ethanol fuel or of soybeans for biodiesel.
Id.

As to corn, EPA stated in its Effects Memorandum that it
“d[id] not expect that the 2019 RFS standards will cause greater
production of ethanol from corn starch than would otherwise
occur . . . . because demand for corn ethanol, both in the U.S.
and globally, is strong.” Id. at 3. For soybeans, EPA
acknowledged that the 2019 standards “likely will affect the
volume of biodiesel and renewable diesel produced and used”
but stated they were “unlikely to result in higher production of
oilseed crops than would be produced in [their] absence”
because oilseed crops “are primarily grown to provide high
protein animal feed (i.e., soy meal and canola meal) for both
U.S. and worldwide markets.” Id. at 8. But even if the 2019
standards would affect corn and soybean production, EPA was
satisfied that “any specific effects on listed species or critical
habitat from those activities could not be attributed with
reasonable certainty to the” 2019 standards. Id. at 2; see id. at
6–7, 11. Finally, although acknowledging that its effects
determination “may appear inconsistent” with its 2018
Triennial Report, EPA dismissed the Report because it “did not
purport to establish a causal relationship” between the
renewable fuel standards program and land use changes,
conducted a proportional analysis that was “not accurate,” and
“was primarily a retrospective review of the impact of biofuel
production on the environment.” Id. at 16.

An agency decision is not arbitrary and capricious where
it is “reasonable and reasonably explained.” Ams. for Clean
 50
Energy, 864 F.3d at 726 (quoting Jackson v. Mabus, 808 F.3d
933, 936 (D.C. Cir. 2015)). But “[a]n agency acts arbitrarily
or capriciously if it ‘has relied on factors which Congress has
not intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency, or
is so implausible that it could not be ascribed to a difference in
view or the product of agency expertise.’” Am. Wildlands,
530 F.3d at 997–98 (quoting State Farm, 463 U.S. at 43).

EPA’s effects determination is arbitrary and capricious.
First, its own Triennial Report undermines the determination
that there is no relationship between the renewable fuel
standards program, biofuel feedstock production, and land use
changes that may harm listed species or critical habitat. The
Report stated that between 2012 and 2016, biofuel production
in the United States grew “steadily” from 14.1 billion to 16.6
billion gallons. Triennial Rept. at 7. Over that same period,
corn production increased from 10.8 billion bushels to 15.1
billion bushels while soybean production increased from 2.7
billion bushels to 4.3 billion bushels. Id. at 12. Indeed, 4 to
7.8 million acres of land have been converted to growing corn
and soybeans since the enactment of the renewable fuel
standards program. Id. at 45. The rate of land conversion
was higher in areas closer to biorefineries, id. at 35, which
“suggests a causal link” between proximity to a biorefinery and
land conversion, id. at 36. These “[w]idespread changes in
land use for biofuel production,” the Report concluded, “have
negative impacts to ecosystem health and biodiversity.” Id. at
88.

Second, other record evidence, including the declaration
of Dr. Tyler Lark, connects the renewable fuel standards
program, increased corn and soybean production, and harm to
threatened species. Dr. Lark noted that “the existing body of
 51
research . . . ties the Renewable Fuel Standard to documented
land use changes and ensuing environmental consequences
which may potentially have detrimental impacts on federally
listed species and their designated critical habitat.” Lark Decl.
¶ 4. He described the “link between the Renewable Fuel
Standards Program, increased cropping intensification, and
hypoxia in the Gulf of Mexico” as “well established.” Id.
¶ 27. This unrebutted evidence is also inconsistent with
EPA’s conclusion that the 2019 standards would not affect corn
and soybean cultivation.

Moreover, EPA’s effects determination dismissed the
relevance of the Triennial Report to the 2019 proposed
standards on the ground that the Report “did not purport to
establish a causal relationship between the RFS annual rules
and land use changes,” conducted a flawed proportional
analysis, and was “primarily a retrospective review.” Effects
Memorandum at 16. Yet, to the contrary, the Report states
that “the observed increase in acreage planted with soybeans
and corn” following the enactment of the renewable fuel
standards program was, at least in part, “a consequence of
increased biofuel production mandates.” Triennial Rept. at ix.
The Report did not speak only in terms of correlation. Further,
upon acknowledging the limitations of proportional analyses,
it supported its conclusions with other types of analyses. Id.
at 54–55. EPA failed to explain why its assessment regarding
the cumulative weight of the evidence had changed. Finally,
the Report expressly addressed the “likely future impacts” of
the renewable fuel standards program, concluding that
“[a]vailable data suggest that current trends using corn starch
and soybeans as primary biofuel feedstocks, with associated
environmental and resource conservation impacts, will
continue in the near term.” Id. at ix.
 52
EPA offered no reason to question the Triennial Report’s
prediction as to 2019, instead stating that the Report “did not
specifically consider the 2019 RFS standard, nor factors unique
to 2019,” such as recent tariffs imposed by China on soybeans
produced in the United States. Effects Memorandum at 16.
The court observed in AFPM 2018 that because the Report
“describe[d] the effects of the annual standards promulgated
over the past decade, and the 2018 Rule is simply the next
iteration of those standards,” it “certainly serve[s] as evidence
of the likely effects of the 2018 Rule.” 937 F.3d at 595. By
parity of reasoning, identifying factors independent of the
renewable fuel standards that may affect corn or soybean
production in 2019 does not rebut the Triennial Report’s
conclusion that renewable fuel standards have caused and will
likely continue to cause increased biofuel feedstock
production, which in turn may harm listed species and critical
habitat.

EPA also rested its 2019 effects determination on “the lack
of a reasonable causal connection between the 2019 [renewable
fuel standards] and effects to listed species or critical habitat.”
Effects Memorandum at 2. But as the court stated in AFPM
2018, “[t]he inability to ‘attribute[]’ environmental harms ‘with
reasonable certainty’ to the 2018 Rule . . . is not the same as a
finding that the 2018 Rule ‘will not affect’ or ‘is not likely to
affect’ listed species or critical habitat.” 937 F.3d at 598
(second alteration in original). EPA’s regulations require a
finding that the proposed action is “not likely” to harm listed
species or critical habitat before an agency may forego formal
consultation with the Services. 50 C.F.R. § 402.14(b)(1). To
the extent EPA questions the causal connection between the
2019 Rule and specific land use changes, this alone does not
excuse the failure to engage in formal consultation.
 53
In sum, EPA’s effects determination is contrary to the
record evidence and thus arbitrary and capricious, see 5 U.S.C.
§ 706(2)(A), and EPA violated the ESA by failing to consult
with the Services before promulgating the 2019 Rule. See 16
U.S.C. § 536(a)(2).

Environmental Petitioners seek a remand of the 2019 Rule
“with an order to consult with the Services,” Env’t Pet’rs’ Br.
34, but the court rejected that request in AFPM 2018,
“preferring instead to allow the EPA to develop the record and
the decide the issue in the first instance.” 937 F.3d at 598.
That still appears the preferrable approach — namely, to
remand the 2019 Rule without vacatur, which Environmental
Petitioners do not request.

C. Severe Environmental Harm Waiver

Environmental Petitioners further challenge the 2019 Rule
for EPA’s arbitrary and capricious failure to invoke the general
waiver provision in 42 U.S.C. § 7545(o)(7)(A), to lower
applicable volumes of renewable fuel in order to prevent severe
environmental harm. This challenge is distinct from
Environmental Petitioners’ challenge to EPA’s failure to
engage in consultation. First, it does not implicate a
procedural right; so, the causation and redressability elements
of standing are not relaxed. Second, it rests on a chain of
causation involving third parties not before the court, namely,
corn and soybean farmers.

1.

Although neither party addresses standing, the court has an
“independent obligation to be sure of [its] jurisdiction.”
Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 174 (D.C. Cir.
2012) (quoting Sierra Club, 292 F.3d at 898). An essential
 54
premise of Environmental Petitioners’ challenge is that
reducing the applicable volumes would cause some farmers to
forego planting corn and soybean, thereby mitigating the
environmental harms associated with biofuel production.
Where traceability and redressability depend on third-party
conduct, “standing is not precluded, but it is ordinarily
substantially more difficult to establish.” Competitive Enter.
Inst., 970 F.3d at 381 (quoting Lujan, 504 U.S. at 562). The
party asserting the court’s jurisdiction must “show[] that third
parties will likely react in predictable ways to the” challenged
government action, Dep’t of Commerce v. New York, 139 S. Ct.
2551, 2566 (2019), such that they “would very likely alter
[their] behavior based on our decision, even if not bound by it,”
Teton Historic Aviation Found. v. U.S. Dep’t of Def., 785 F.3d
719, 728 (2015); see Competitive Enter. Inst., 970 F.3d at 381–
82 (collecting cases). “In considering the likely reaction of
third parties, we may consider a variety of evidence, including
the agency’s own factfinding; affidavits submitted by the
parties; evidence in the administrative record; arguments
firmly rooted in the basic laws of economics; and conclusions
in other agency orders and rulemakings.” Competitive Enter.
Inst., 970 F.3d at 382 (citations and quotation marks omitted).

Environmental Petitioners have demonstrated an injury in
fact that is fairly traceable to EPA’s decision not to apply its
environmental harm waiver in the 2019 rulemaking. Giessel
and Fontenot have established cognizable interests in listed
species that are threatened by environmental degradation
caused, at least in part, by EPA’s renewable fuel standards
program. These injuries are redressable. Congress intended
the renewable fuel standards program to function as a “market
forcing policy.” Ams. for Clean Energy, 864 F.3d at 705
(citation omitted). “By requiring upstream market
participants such as refiners and importers to introduce
increasing volumes of renewable fuel into the transportation
 55
fuel supply,” the program “create[s] ‘demand pressure to
increase consumption of renewable fuel.’” Id. (citation
omitted). As set forth in Dr. Lark’s declaration and the
Triennial Report, the natural consequence of artificially
increasing the supply of biofuel is an increase in the demand
for biofuel feedstocks of corn and soybeans. Farmers respond
to this increase in demand by growing more corn and soybeans.
This assessment is “firmly rooted in the basic laws of
economics” and requires no complex chain of reasoning.
Competitive Enter. Inst., 970 F.3d at 382. Therefore, there is
substantial reason to conclude that reducing the 2019
applicable volumes through application of the severe
environmental harm waiver would cause the demand for corn
and soy to drop and at least some farmers would respond by
reducing their production of corn and soybeans. This
“voluntary but reasonably predictable” third-party conduct
suffices to establish redressability. Id. at 384.

2.

The Clean Air Act’s general waiver authority permits EPA
to reduce the applicable volumes in whole or in part if, after
notice and comment, it determines that they “would severely
harm the . . . environment of a State, a region, or the United
States.” 42 U.S.C. § 7545(o)(7)(A)(i). In its Effects
Memorandum evaluating the environmental effects of the
proposed 2019 Rule, EPA acknowledged that “[m]any
commenters” argued the applicable volumes would cause
severe environmental harm “for the same reasons” it would
threaten listed species and critical habitat. Effects
Memorandum at 13. EPA disagreed, stating that “[b]ased on
the analysis” in the effects determination, “we do not believe
that the 2019 RFS standards induce increased crop cultivation
or associated land use changes or otherwise affect listed species
or critical habitat.” Id. “[T]here [was] not sufficient
 56
evidence to support a finding of ‘severe environmental harm’
to justify the exercise of the severe environmental harm
waiver.” Id. at 12.

For reasons discussed, EPA’s determination that the 2019
Rule would not affect listed species is arbitrary and capricious
because it is contrary to the weight of the evidence. Because
EPA’s effects determination is defective, its decision regarding
severe environmental harm, which rests on the same faulty
analysis, is also arbitrary and capricious. We therefore
remand without vacatur of the 2019 Rule for EPA to revisit its
decision not to exercise the waiver for severe environmental
harm.