Producers of Renewables United v. EPA

Appellate Case: 19-9532            Document: 010110648841   Date Filed: 02/23/2022    Page: 1
                                                                      FILED
                                                          United States Court of Appeals
                           UNITED STATES COURT OF APPEALS         Tenth Circuit

                                 FOR THE TENTH CIRCUIT                     February 23, 2022
                             _________________________________
                                                                          Christopher M. Wolpert
                                                                              Clerk of Court
  PRODUCERS OF RENEWABLES
  UNITED FOR INTEGRITY TRUTH AND
  TRANSPARENCY,

         Petitioner,

  v.                                                            No. 19-9532
                                                              (EPA No. 8486)
  ENVIRONMENTAL PROTECTION                            (Environmental Protection Agency)
  AGENCY,

         Respondent.

  ------------------------------

  HOLLYFRONTIER CHEYENNE
  REFINING, LLC; HOLLYFRONTIER
  REFINING & MARKETING, LLC;
  SINCLAIR CASPER REFINING
  COMPANY; SINCLAIR WYOMING
  REFINING COMPANY,

         Intervenors.
                             _________________________________

                                          ORDER*
                             _________________________________

 Before HARTZ, BALDOCK, and EID, Circuit Judges.
                   _________________________________




        *
          This order is not binding precedent, except under the doctrines of law of the case,
 res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
 consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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        Petitioner Producers of Renewables United for Integrity Truth and Transparency

 (“Producers of Renewables”) seeks to challenge Environmental Protection Agency

 (“EPA”) actions granting certain small refineries in Wyoming replacement fuel credits,

 known as Replacement Identification Numbers (“RINs”). These 2017 and 2018 agency

 decisions, on remand from judgment in this court, determined these refineries were

 entitled to exemptions from compliance with the Renewable Fuel Standard Program (the

 “Program” or “RFS”) in 2014 and 2015 based on a finding of “disproportionate economic

 hardship.” 42 U.S.C. § 7545(o)(9)(B). However, the lengthy judicial and regulatory

 proceedings caused the traditional relief—refunding the RINs each company had already

 retired for compliance—to be worthless as these credits had already expired. In order to

 provide a meaningful remedy, the EPA issued the refineries replacement RINs.

 Producers of Renewables seeks to challenge this relief. But because the group lacks

 constitutional standing, we dismiss for want of jurisdiction.

                                    I. BACKGROUND

 A. Statutory and Regulatory Background

        1. The Renewable Fuel Standard Program

        In 2005, Congress passed and President George W. Bush signed the Energy Policy

 Act, Pub. L. No. 109-58, 119 Stat. 594 (2005). Among other things, this Act established

 the Clean Air Act’s Renewable Fuel Standard Program. Id. § 1501, 119 Stat. at 106776

 (codified as amended at 42 U.S.C. § 7545(o)). In 2007, Congress amended the

 Renewable Fuel Standard Program as part of the Energy Independence and Security Act.

 See Pub. L. No. 110-140, §§ 201–202, 121 Stat. 1492 (2007) (codified at 42 U.S.C.


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 § 7545(o)). As amended, the RFS requires the EPA to promulgate annual “renewable

 fuel obligation[s]” specifying volumes of renewable fuels to be introduced into the

 country’s supply of transportation fuel each year. See 42 U.S.C. § 7545(o)(2)(B), (3)(B).

        The RFS statute contemplates that certain participants in the transportation fuel

 market—namely, “refineries,” “blenders,” and “importers”—will be required to satisfy

 annual “renewable fuel obligation[s].” Id. § 7545(o)(3)(B)(ii). To accomplish these

 goals, the Program regulates suppliers through “applicable volume[s]”—mandatory and

 annually increasing quantities of renewable fuels that must be “introduced into commerce

 in the United States” each year. Id. § 7545(o)(2)(A)(i). This volume is converted into

 “percentage standards” that apply to obligated parties, who must then ensure that for

 every gallon of nonrenewable fuel it produces or imports, adequate quantities of

 renewable fuels are introduced into the economy. Id. § 7545(o)(2)–(3); 40 C.F.R.

 § 80.1406–80.1407.

        2. Renewable Identification Numbers

        After the obligated parties have been identified and their percentage standards

 have been set, there remains the matter of compliance. For every gallon of renewable

 fuel entering the U.S. market, producers and importers may generate a set of “Renewable

 Identification Numbers.” 40 C.F.R. §§ 80.1426, 80.1429(b). The number of RINs

 assigned to each batch corresponds to the amount of ethanol-equivalent energy per gallon

 in that batch. See id. § 80.1415. RINs remain attached to the renewable fuel until that

 fuel is purchased by an obligated party or blended into fossil fuels to be used for

 transportation fuel. At that point, the RINs become “separated,” meaning they are, in


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 effect, a form of compliance credit. A RIN may be used to demonstrate compliance

 during the calendar year it was generated, or the following calendar year, and thereafter is

 considered expired and cannot be used for compliance purposes. Id. §§ 80.1427(a)(6),

 80.1428(c), 80.1431(a).

        Each year, obligated parties must generate or purchase enough RINs to meet their

 renewable fuel obligations—which they then satisfy by “retir[ing]” RINs in an annual

 compliance demonstration to the EPA. Id. § 80.1427(a). This system gives obligated

 parties flexibility in demonstrating compliance by allowing them to generate RINs in

 several manners: producing renewable fuel on their own for use in the United States,

 purchasing and blending renewable fuels themselves, or purchasing RINs reflecting

 renewable fuel volumes blended by other entities. 72 Fed. Reg. at 23,900, 23,942

 (May 1, 2007).

        Obligated parties who have more RINs than they need may sell or trade their

 excess or they may “bank” those RINs for use to meet up to twenty percent of their

 obligations for the following compliance year. See 42 U.S.C. § 7545(o)(5)(B); 40 C.F.R.

 §§ 80.1425–29; 80 Fed. Reg. at 77,485 (Dec. 14, 2015). This system is predicated on the

 premise of empowering the renewable fuel market to operate “according to natural

 market forces,” allowing obligated parties a means to comply with the standards in the

 most economically efficient way by avoiding, if they wish, expenditures on infrastructure

 or changes in blending practices. See 72 Fed. Reg. at 23,904, 23,908, 23,930, 23,933

 (May 1, 2007).




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        3. The Temporary Exemption for Small Refineries

        Congress was aware the RFS Program might disproportionately impact small

 refineries because of the inherent scale advantages of large refineries and therefore

 temporarily exempted small refineries from RFS compliance until 2011.1 42 U.S.C.

 § 7545(o)(9)(A)(i). After a congressionally directed study by the Department of Energy

 (“DOE”) determined that a number of small refineries would suffer “disproportionate

 economic hardship” if they were required to comply with RFS, Congress extended the

 blanket exemption for two more years. See id. § 7545(o)(9)(A)(ii). Thereafter, Congress

 provided a process for small refineries to petition the EPA “at any time” for an extension

 of the initial exemption “for the reason of disproportionate economic hardship.” Id.

 § 7545(o)(9)(B)(i).

 B. Factual Background

        1. Initial EPA Proceedings

        Sinclair Casper Refining Company, Sinclair Wyoming Refining Company

 (collectively “Sinclair”), and HollyFrontier Cheyenne Refining, LLC (“HollyFrontier”)

 are small refineries under 42 U.S.C. § 7545(o)(1)(K). Faced with various adverse

 economic conditions, each of these small refineries sought hardship exemptions. The

 EPA initially denied these refineries hardship exemptions under the RFS for the 2014 and

 2015 compliance years.



        1
         Small refineries—those with an average annual output of 75,000 barrels per day
 of crude oil or less—may face greater difficulty complying with the Program than other
 obligated parties. See 42 U.S.C. § 7545(o)(1)(K).

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        2. Sinclair and the EPA Decision on Remand

        HollyFrontier and Sinclair then petitioned this court for review of the EPA’s

 denials of their respective petitions. In Sinclair Wyo. Ref. Co. v. EPA, we held that the

 EPA—in the context of denying Sinclair’s petitions—interpreted “disproportionate

 economic hardship” too stringently by requiring refineries to demonstrate an existential

 threat to their viability. 887 F.3d 986, 999 (10th Cir. 2017). As a result, we granted

 Sinclair’s petition for review, vacated the EPA’s 2014 decisions for Sinclair’s two

 Wyoming refineries, and remanded for further proceedings. Because the EPA denied

 Sinclair’s and HollyFrontier’s 2015 petitions for a small refinery exemption on the same

 basis, we also granted EPA’s voluntary request for remand and vacatur of those petitions.

        On remand from this court, the EPA concluded that Sinclair and HollyFrontier

 were now entitled to small refinery exemptions. The EPA then turned to the appropriate

 remedy. During this lengthy administrative and judicial process, the facilities

 accumulated sufficient RINs to meet their respective 2014 and/or 2015 obligations. But

 by the time of this second agency decision, the RINs expired and were now “worthless.”

 App’x Vol. III at 908. The EPA explained it used its “discretion to find another way to

 give meaningful value to those RINs.” Id. It chose to “replicat[e] as closely as possible

 the situation that would have existed” had the exemptions been issued before Sinclair.

 Id. Therefore, the EPA decided to “un-retire” the RINs these refineries used for their

 2014 and 2015 compliance and return them to each refinery. Id. It did so by exchanging

 each refinery’s expired RINs on a one-for-one basis with trackable 2018 RINs. The




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 EPA’s remedy allowed each small refinery to replace expired RINs previously used for

 RFS compliance with the same number of unexpired RINs.

          3. D.C. Circuit Proceeding

          Producers of Renewables is a group consisting of companies that own and operate

 facilities that produce biomass-based diesel or ethanol and participate in the Program.

 Pet’r Br. at 17. As relevant here, it petitioned the D.C. Circuit to review these individual

 exemption remedies, arguing that the EPA improperly took this action without notice and

 comment and that it was not authorized to implement this remedy on remand from

 Sinclair.

          The D.C. Circuit ruled that review of the EPA’s decisions was locally

 applicable—as each one affected a small refinery in Wyoming. Producers of Renewables

 United for Integrity Truth and Transparency v. EPA, 778 F. App’x 1 (D.C. Cir. 2019)

 (unpublished). Because venue in the D.C. Circuit was only appropriate if the final action

 taken by the EPA was “nationally applicable,” or if the EPA published a finding that an

 otherwise local action is “based on a determination of nationwide scope or effect,”

 42 U.S.C. § 7607(b)(1), the D.C. Circuit transferred that portion of the proceeding to our

 court.

                                       II. ANALYSIS

          On appeal, Producers of Renewables renews its challenge to: (1) the EPA’s

 process in formulating these specific individual exemption remedies and (2) its authority

 to issue replacement RINs. Before proceeding to the merits of Producers of Renewables’

 challenge, we must find that this case satisfies the jurisdictional requirements of


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 Article III of the Constitution. The Constitution limits the “judicial Power of the United

 States” to “Cases” or “Controversies,” U.S. Const. art. III, §§ 1–2, and the requirements

 of standing are “rooted in the traditional understanding of a case or controversy,” Spokeo,

 Inc. v. Robins, 578 U.S. 330, 338 (2016). “To state a case or controversy under

 Article III, a plaintiff must establish standing.” Ariz. Christian Sch. Tuition Org. v. Winn,

 563 U.S. 125, 133 (2011) (citation omitted).

        We recognize that Intervenors have not challenged the standing of Producers of

 Renewables to raise their claims. Nevertheless, we have an independent obligation to

 verify that Producers of Renewables has Article III standing to bring its claims before

 proceeding further. See New England Health Care Emps. Pension Fund v. Woodruff,

 512 F.3d 1283, 1288 (10th Cir. 2008) (“It is well established that any party, including the

 court sua sponte, can raise the issue of standing for the first time at any stage of the

 litigation, including on appeal.”); see also Valenzuela v. Silversmith, 699 F.3d 1199,

 1204–05 (10th Cir. 2012) (explaining that federal courts cannot “assume they have

 subject matter jurisdiction for the purpose of deciding claims on the merits”). Whether a

 plaintiff has Article III standing is a question we review de novo. S. Utah Wilderness All.

 v. Palma, 707 F.3d 1143, 1152 (10th Cir. 2013) (citation omitted).

        When, as here, an organization or association sues on behalf of its members,2 the

 organization has standing if:


        2
          Producers of Renewables includes biomass-based diesel producers that
 participate in the RFS Program. These companies generate and/or hold RINs. To the
 best of our understanding, there is only one specific member company (“Member”)


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        (a) [I]ts members would otherwise have standing to sue in their own right; (b) the
        interests it seeks to protect are germane to the organization’s purpose; and
        (c) neither the claim asserted nor the relief requested requires the participation of
        individual members in the lawsuit.

 Dine Citizens Against Ruining Our Environment v. Bernhardt, 923 F.3d 831, 840 (10th

 Cir. 2019) (quoting Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343

 (1977)).

        The EPA and the Intervenors do not argue, nor do we have any reason to believe,

 that Producers of Renewables fails to satisfy the latter two requirements. The issue

 before us, then, is whether at least one member of Producers of Renewables has standing

 under Article III. In order to show its members would otherwise “have standing to sue in

 their own right,” id., an organization must demonstrate that: (1) at least one of its

 members “has suffered an ‘injury in fact’ that is (a) concrete and particularized and

 (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to

 the challenged action of the defendant; and (3) it is likely, as opposed to merely

 speculative, that the injury will be redressed by a favorable decision.” Friends of the

 Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (citation

 omitted). “We refer to these three familiar requirements as injury in fact, causation, and



 identified in this association. Other than this one company, Producers of Renewables has
 failed to identify a comprehensive list of its members. Ordinarily, a prerequisite for
 organizations alleging associational standing is to identify their affected members. See
 Summers v. Earth Island Inst., 555 U.S. 488, 497–99 (2009). But that omission is not
 fatal here, because Producers of Renewables purports to represent only biomass-based
 diesel producers and apparently represents no other interests. When “all the members of
 the organization are affected by the challenged activity,” there is no need to identify
 injured members. Id. at 499 (citation omitted).

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  redressability.” Habecker v. Town of Estes Park, 518 F.3d 1217, 1224 (10th Cir. 2008)

  (citation omitted).

         “The party invoking federal jurisdiction bears the burden of establishing”

  standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The elements of

  standing “must be supported in the same way as any other matter on which the plaintiff

  bears the burden of proof, i.e., with the manner and degree of evidence required at the

  successive stages of the litigation.” Id. When, as here, we entertain a direct appeal from

  an administrative decision, the petitioner “must produce evidence on each element of

  standing as if it were moving for summary judgment in district court.” N. Laramie Range

  Alliance v. FERC, 733 F.3d 1030, 1034 (10th Cir. 2013). If the opposing party contests

  these facts, the petitioner will “not enjoy the benefit of any inference” and must meet its

  burden of persuasion under a preponderance-of-the-evidence standard. Id. (internal

  quotation marks and citation omitted). This standard requires the movant “to support its

  position with the greater weight of the evidence.” Nutraceutical Corp. v. Von

  Eschenbach, 459 F.3d 1033, 1040 (10th Cir. 2006) (citation omitted).

         Finally, we note the Supreme Court has counseled that “when the plaintiff is not

  himself the object of the government action or inaction he challenges, standing is not

  precluded, but it is ordinarily ‘substantially more difficult’ to establish.” Lujan, 504 U.S.

  at 562 (citations omitted). Setting aside the first requirement of standing, we find that

  Producers of Renewables has not made the requisite demonstration of either the causation

  or redressability element of standing.




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  A. Causation

         To properly establish causation, the injury “must be ‘fairly traceable’ to the

  challenged action.” Allen v. Wright, 468 U.S. 737, 751 (1984) (citation omitted),

  abrogated in part on other grounds by Lexmark Int’l, Inc. v. Static Control Components,

  Inc., 572 U.S. 118 (2014). That is, the plaintiff must show there is a “substantial

  likelihood,” Nova Health Sys. v. Gandy, 416 F.3d 1149, 1156 (10th Cir. 2005), that the

  injury is “fairly traceable to the challenged action of the defendant and not the result of

  the independent action of some third party.” Habecker, 518 F.3d at 1224.

         Producers of Renewables argues the challenged agency actions “have reduced the

  need to purchase physical gallons of biofuel to meet the RFS” and “reduced RIN prices.”

  Pet’r Br. at 18. Consequently, it broadly contends its members “have lost sales, lost

  value for their product under previously entered contracts, lost customers, and, in some

  cases, have had to strand investments, as a result of EPA’s actions and lost demand.” Id.

         The organization also relies on a sealed declaration from the Director of Sales and

  Marketing for a member of Producers of Renewables (“Member”),3 to bolster its

  argument for standing. Member explains that “a series of press reports revealed the

  apparent expansion of the small refinery exemptions under the Renewable Fuel Standard

  program by EPA” to include “exemptions to refineries owned and operated by

  HollyFrontier Corporation and Sinclair Oil Corporation.” Supp. App’x at 4-5. And

  Member attributes a “drop in RIN prices” and “volatility of the RIN market” in part to


  3
   At the request of Producers of Renewables, we keep the association’s membership list
  confidential, and refer to the relevant company only as Member throughout this order.

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  news of the “EPA’s actions related to the small refinery exemption[s] . . . com[ing] to

  light.” Id. at 7.

         As Member tells it, “[g]ranting small refinery exemptions after EPA sets the

  standards for the coming year is perceived as allowing RINs to reenter the market.” Id.

  at 8. This awareness, in turn, “[t]ypically. . . results in a decrease in [RIN] prices,” id.,

  because approving small refinery exemptions in this manner reduces the required

  renewable volume obligations “and, thereby, reduces demand under the Renewable Fuel

  Standard program.” Id. at 10. To support these claims, Member notes that “EPA has

  indicated that it granted 19 small refinery exemptions for compliance year 2016 and

  29 small refinery exemptions for compliance year 2017.” Id. at 11. And these “small

  refinery exemptions have reduced the volume requirements for 2016 by 790 million

  gallons and for 2017 by 1.46 billion gallons.” Id. at 10. To demonstrate its concrete

  injury, Member described how “[p]rior to April 2018, D4 RINs were around $0.75. On

  October 18, 2018, D4 RIN values [were] reported at $0.31.”4 Id. at 9. Finally, seeking to

  tie the EPA’s actions challenged in this appeal to its alleged injury, Member offers one

  news article. See id. at 9 n.10. This article purports to demonstrate that the EPA’s

  decisions concerning Sinclair and HollyFrontier have “lowered RIN prices and created

  volatility in the RIN market.” Id. at 09.

         Producers of Renewables also provides a declaration from Collin Cain, an expert

  in the energy industry, to bolster its claim for standing. His report largely echoes many


         4
        One gallon of biodiesel that qualifies as biomass-based diesel under the
  Renewable Fuel Standard program generates 1.5 D4 RINs. See Supp. App’x at 9.

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  of the concerns raised by Member. He argues that “the sharp increase in [small refinery]

  exemptions provided by EPA has caused significant decreases in the renewable fuel

  volume obligations that EPA had set in advance of each compliance year.” Pet’r Br.

  Addendum, Cain Decl. ¶ 16. This results in a drop in RIN prices—“reflecting both the

  reduction in obligation volumes, and also the uncertainty caused by EPA’s complete lack

  of transparency [in granting these exemptions].” Id. ¶ 26. As evidence of this causal

  relationship, Cain includes reference to a series of articles which he claims depict how

  news of small refinery exemptions impacts RIN prices. See id. ¶¶ 27–28.

         We hold that Producers of Renewables has failed to show the required causal

  connection between its alleged injury and the challenged actions of the EPA. Because

  the organization must produce evidence on each element of standing “as if it were

  moving for summary judgment in district court,” N. Laramie, 733 F.3d at 1034,

  Producers of Renewables cannot establish causation “with conclusory allegations of an

  affidavit,” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990).

         Producers of Renewables asserts the EPA’s granting of nationwide small refinery

  exemptions has caused volatility in the market and devalued RINs. See, e.g., Supp.

  App’x at 7. Perhaps so, but it is an altogether separate notion to establish that there is a

  “substantial likelihood,” Nova Health Sys., 416 F.3d at 1156, that its injury is fairly

  traceable to the EPA’s individualized decisions to offer replacement RINs for three small

  refineries in Wyoming. Here, we find that Producers of Renewables has not adequately

  explained how falling RIN prices or market volatility was caused by the EPA’s decision

  to unretire RINs for HollyFrontier and Sinclair.


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         In Member’s declaration, for example, we find one attempt to directly tie the

  challenged actions in this appeal to its alleged injury. Member cites to a June 1, 2018,

  article from the Environmental and Energy Study Institute (“EESI”) to support its

  argument that “[r]eports of EPA . . . allowing HollyFrontier and Sinclair to generate 2018

  RINs as a result of reversing previously denied exemption requests. . . lowered RIN

  prices and created volatility in the RIN market.” Supp. App’x at 8–9. But the article

  does not focus on the EPA’s decisions that are contested in this appeal. While it briefly

  references HollyFrontier and Sinclair, the article goes on to state that “[u]nder a

  previously little-used authority, EPA had already taken steps to grant small refinery

  exemptions to approximately two dozen petroleum refiners, relinquishing them of their

  duty to either blend biofuels or buy compliance credits under the Renewable Fuel

  Standard.” Id. at 9 n.10. From there, the EESI argues, “[t]he net effect of the waivers

  and continued uncertainty has been a tumble in RIN prices.” Id. The EESI’s core

  concern is the fact that “the Trump Administration has been awarding [hardship waivers]

  to refiners of all sizes, including refining giants.” Id.

         Further, this article, which reported on the breaking news of the EPA’s decision to

  issue replacement RINs for HollyFrontier and Sinclair, was published on June 1, 2018.

  According to Member, news of this decision negatively affected it—by causing RIN

  prices to drop and introducing volatility into the RIN market. See, e.g., Supp. App’x at 7.




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  But RIN prices were steadily falling prior to this announcement.5 Dating back as early as

  January 2018, RIN prices were in decline. In fact, the price of the D4 RIN, specifically

  highlighted by Member as evidence of its alleged injury, id. at 9, actually increased after

  news of the EPA’s challenged decision in this appeal went public. On May 28, 2018, the

  price of a D4 RIN was $0.56. By June 4, 2018, the price of a D4 RIN was $0.85.

         Cain fares no better in his attempt to link the EPA’s decision to issue replacement

  RINs for three small refineries in Wyoming to the alleged injuries suffered by Producers

  of Renewables’ members. Throughout his declaration, he repeatedly criticizes the EPA’s

  overarching decision to increase the number of small refinery exemptions it grants each

  year. See Pet’r Br. Addendum, Cain Decl. ¶ 23 (“EPA’s abrupt expansion of small

  refinery exemptions, granted after the renewable fuel volumes had been set, and in some,

  if not all, cases after the compliance period had ended, has reduced the renewable fuel

  obligations that biofuel producers had relied upon to plan and invest.”); see also ¶¶ 16,

  26, 31–34.

         His inclusion of Figure 3, id. ¶ 30, cuts against a claim for standing. It visually

  portrays falling RIN prices imposed over various events related to news of small refinery



         5
           See RIN Trades and Price Information, UNITED STATES ENVIRONMENTAL
  PROTECTION AGENCY, https://www.epa.gov/fuels-registration-reporting-and-compliance-
  help/rin-trades-and-price-information (last updated Jan. 10, 2021). “It is not uncommon
  for courts to take judicial notice of factual information found on the world wide web.”
  O’Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007); see also,
  e.g., Schaffer v. Clinton, 240 F.3d 878, 885 n.8 (10th Cir. 2001) (taking judicial notice of
  information found on an online political almanac); see also City of Monroe Emps. Ret.
  Sys. v. Bridgestone Corp., 399 F.3d 651, 655 n.1 (6th Cir. 2005) (taking judicial notice of
  a term defined on the website of the National Association of Securities Dealers, Inc.).

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  exemptions. Yet four out of the five depicted events deal with the EPA’s decision to

  increasingly grant nationwide small refinery exemptions—not the agency’s decision to

  unretire RINs. The first article, from January 25, 2018, “reported that EPA was

  reviewing 27 applications from small refineries to waive their RFS obligations.” Id. ¶ 27.

  And the April 2018 article was an “exclusive” report from Reuters that the EPA granted

  small refinery exemptions “to three small refineries owned by Andeavor, one of the

  largest U.S. refining companies.” Id. ¶ 28. Neither article concerned the issue at stake in

  this appeal. Indeed, Cain writes: “[t]he sustained fall in RIN prices and increased price

  volatility, caused by the progressive revelations of EPA’s actions on small refinery

  exemptions, and particularly the fact that EPA has been granting exemptions

  retroactively, represent substantial disruptions to the biofuel industry.” Id. ¶ 31.

         The common thread between the declarations of Member and Cain is a fixation on

  the EPA’s “sharp increase in granted [small refinery] exemptions” across the country. Id.

  ¶ 24. In so doing, we agree with the refineries that Producers of Renewables “fails to

  identify any basis for attributing market-wide fluctuations in RIN prices to the limited

  number of replacement RINs EPA issued to Sinclair and HollyFrontier.” Intervenor Br.

  at 14. Producers of Renewables does not delineate between the EPA’s decision to grant

  an increasing number of small refinery exemptions over the past several years—an issue

  not challenged in this appeal6—from the agency’s decision to issue replacement RINs to

  HollyFrontier and Sinclair. The failure to do so proves fatal to its ability to demonstrate



         6
             “Petitioner has not challenged the exemptions themselves.” Respondent Br. at 9.

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  there is a “substantial likelihood,” Nova Health Sys., 416 F.3d at 1156, that its injuries are

  fairly traceable to the EPA’s individualized decisions to unretire RINs for three small

  refineries in Wyoming.

         What is more, Producers of Renewables fails to contend with other potential

  causes of its alleged injuries. As the refineries point out, “[s]upply and demand for

  transportation fuels, renewable fuel, and RINs can be influenced by a host of factors,

  such as trade policies, consumer demand, and overall renewable fuel production.”

  Intervenor Br. at 16 (citation omitted); see also App’x Vol. II at 772 (discussing

  economic fundamentals such as “weather, driving demand, oil prices, [and] geopolitical

  factors” as influencers of RIN pricing). Indeed, its own brief betrays its position. See

  Pet’r Br. at 15 n.22 (“RIN prices were ‘relatively calm’ in 2015 and 2016, but, ‘with the

  administrative change,’ there was ‘policy uncertainty-driven price behavior.’” (citation

  omitted)).

         “Although the traceability of a plaintiff’s harm to the defendant’s actions need not

  rise to the level of proximate causation, Article III does require proof of a substantial

  likelihood that the defendant’s conduct caused plaintiff’s injury in fact.” Habecker, 518

  F.3d at 1225 (internal quotation marks and citation omitted). If “speculative inferences

  are necessary” to connect the alleged injury “to the challenged action, this burden has not

  been met.” Id. (internal quotation marks and citations omitted). And even though “harm

  to a third party” resulting from a government policy imposed on a separate entity does

  not necessarily defeat standing, “it may make it substantially more difficult . . . to




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  establish that, in fact, the asserted injury was the consequence of the defendants’ actions.”

  Warth v. Seldin, 422 U.S. 490, 505 (1975).

         The final element in our consideration is not that agency action merely negatively

  impacted a prospective litigant, but that the harm suffered by the party was a direct result

  of an “agency’s alleged failure to follow the [law].” Comm. to Save the Rio Hondo v.

  Lucero, 102 F.3d 445, 451–452 (10th Cir. 1996). Consistent with our logic in Committee

  to Save the Rio Hondo, our sister circuit has held that “[t]he issue in the causation inquiry

  is whether the alleged injury can be traced to the defendant’s challenged conduct, rather

  than to that of some other actor not before the court.” Ecological Rights Found. v.

  Pacific Lumber, 230 F.3d 1141, 1151 (9th Cir. 2000) (citing Lujan v. Defenders of

  Wildlife, 504 U.S. 555 (1992)). Here, we do have an allegation of agency lawbreaking,

  but there is no nexus between the law breaking and the harm incurred. The harm, as

  argued by Producers of Renewables, was the volatility and unpredictability of the

  markets. This volatility, such as it was, was not the result of the unlawful conduct that

  Plaintiff alleges, but rather the result of permissible conduct. Conversely, the law

  breaking alleged, the replacement RINs, were not persuasively shown to have harmed the

  Plaintiff.

         Given Plaintiff’s inability to meet the burden prescribed by Committee to Save the

  Rio Hondo and the burden of persuasion in Warth, we find the asserted injury cannot be

  said to be fairly traceable to the challenged agency action.




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  B. Redressability

         “To demonstrate redressability, a party must show that a favorable court judgment

  is likely to relieve the party’s injury.” WildEarth Guardians v. Pub. Serv. Co. of Colo.,

  690 F.3d 1174, 1182 (10th Cir. 2012) (internal quotation marks and citation omitted).

  Although causation and redressability are closely related, Nova Health Sys., 416 F.3d

  at 1159, the twin requirements remain distinct and must be separately met, N. Laramie,

  733 F.3d at 1034–39. “A showing that the relief requested might redress the plaintiff’s

  injuries is generally insufficient to satisfy the redressability requirement.” WildEarth

  Guardians, 690 F.3d at 1182 (citation omitted).

         We hold Producers of Renewables has failed to show that a judgment against the

  EPA in this action would likely redress its alleged injuries. The record does not support a

  finding that a judgment instructing the EPA to claw back the replacement RINs issued to

  HollyFrontier and Sinclair would relieve its injuries. As noted above, Producers of

  Renewables repeatedly asserts that the EPA’s decision to increasingly grant small

  refinery exemptions across the nation caused volatility in the market and a subsequent

  drop in RIN prices. For that reason, we do not see how a decision reversing the EPA’s

  chosen remedy for three small refineries recoups lost demand for its biofuel or halts

  falling RIN prices.

         Most significantly, a judgment in Producers of Renewables’ favor would do

  nothing to stem the volume of small refinery exemptions granted by the EPA. In

  reaching this conclusion, we emphasize that Producers of Renewables “does not

  challenge the validity of the exemptions themselves.” Respondent Supp. Br. at 1. It only


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  contests the appropriate remedy for these three small refineries in this unique context.7

  Accordingly, Producers of Renewables has not established that its requested relief “is

  likely to relieve the party’s injury.” WildEarth Guardians, 690 F.3d at 1182 (citation

  omitted).

         We also observe that it is uncertain what remedy the EPA would fashion on a

  potential remand. “Courts have been loath to find standing when redress depends largely

  on policy decisions yet to be made by government officials.” US Ecology, Inc. v. U.S.

  Dept. of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). That is because redressability in this

  case “depends on the unfettered choices made by [government] actors . . . whose exercise

  of broad and legitimate discretion the courts cannot presume either to control or to

  predict.” ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989).

         Further, even if the EPA were to “offset the refinery’s future obligations,” Pet’r

  Br. at 30 n.31, as Producers of Renewables suggests, this would reduce the renewable

  fuel volume obligations for an upcoming year. In turn, there would likely be an increase

  in the available RINs for that upcoming year, thereby minimizing “the need for

  production of biodiesel gallons and reducing the price for current production.” Supp.

  App’x at 11. Consequently, this proposed remedy would likely have little to no impact

  on rectifying the alleged injuries. And as the refineries note, this recommendation is not

  practical. “It overlooks the very real possibility that, in the next compliance year, the


         7
           EPA’s counsel stated at oral argument this is “the only time [the replacement of
  RINs after they have expired] has ever happened. . . . It’s not happened before or since,. .
  . only in these five cases.” Oral Arg. at 29:26–29:39, No. 18-1202 (D.C. Cir. May 7,
  2019).

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  refinery would merit an exemption from future obligations. Offsetting future obligations

  in lieu of making the refineries whole would only serve to deny them a remedy in a

  different year.” Intervenor Supp. Br. at 12 n.4.

         At bottom, the Supreme Court has stated that “[p]etitioners must allege facts from

  which it reasonably could be inferred that . . . if the court affords the relief requested, the

  [injury] will be removed.” Warth, 422 U.S. at 504. But Producers of Renewables offers

  no reason to believe that a decision requiring the EPA to reclaim the replacement RINs

  issued to HollyFrontier and Sinclair would “be substantially likely to redress,” Nova

  Health Sys., 416 F.3d at 1160, its alleged injuries. Instead, it is likely that any potential

  remedy would result in a dilution in the value of the RINs that Producers of Renewables’

  members generate.

  C. Procedural Standing

         We next turn to the fact that Producers of Renewables alleges, at least in part, a

  procedural injury due to the EPA’s failure to hold notice and comment rulemaking. An

  alleged procedural injury is subject to a “somewhat relaxed, or at least conceptually

  expanded,” standard of standing. See WildEarth Guardians v. EPA, 759 F.3d 1196, 1205

  (10th Cir. 2014). For example, a plaintiff need only show that its alleged injury “could

  be redressed by requiring the agency to make a more informed decision.” Id. Here,

  however, these more relaxed standards of standing do not help Producers of Renewables.

  That is because, as set forth above, Producers of Renewables cannot show that the EPA

  could do anything to redress their alleged injury, under any set of circumstances. In this

  case, we need not consider whether Producers of Renewables’ alleged injury could be


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  redressed by notice and comment rulemaking, as it cannot be. We accordingly conclude

  that, to the extent that Producers of Renewables relies on procedural standing to establish

  standing, the attempt fails.

  D. Supplemental Briefing

         After oral argument, Producers of Renewables filed a notice of supplemental

  authority under Fed. R. App. P. 28(j) to highlight our court’s decision in Renewable Fuels

  Association v. EPA, 948 F.3d 1206 (10th Cir. 2020). Of note, Producers of Renewables

  contends that in Renewable Fuels we rejected arguments similar to ones raised by the

  refineries in this case, which contested the petitioners’ standing to sue.

         For two reasons, we find that Renewable Fuels has no bearing on our obligation to

  ensure that Producers of Renewables “had Article III standing at the outset of [this]

  litigation.” Friends of the Earth, 528 U.S. at 180. First, the petitioners in Renewable

  Fuels—four organizations that make up the Biofuels Coalition—challenged an agency

  decision distinct from what is at stake in this appeal. There, the petitioners argued the

  EPA exceeded its statutory authority in granting extensions of several small refinery

  exemptions.

         We are confronted with a different issue. Unlike the petitioners in Renewable

  Fuels, Producers of Renewables does not challenge the validity of the EPA’s decision to

  grant HollyFrontier and Sinclair hardship exemptions. But in Renewable Fuels, the

  Biofuels Coalition argued the EPA improperly conducted its “disproportionate economic

  hardship” evaluation for certain small refineries. 948 F.3d at 1252. In so doing, the

  Biofuels Coalition claimed the EPA should never have granted these hardship


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  exemptions in the first place. That is not contested in this case. In order to effectuate the

  hardship exemptions to ensure it provided relief to HollyFrontier and Sinclair, the EPA

  granted the small refineries replacement compliance credits. As such, Producers of

  Renewables only challenges the decisions to grant replacement RINs—not the underlying

  small refinery exemptions.

         These differences have implications for our standing analysis. For example, in

  Renewable Fuels, we vacated the EPA’s grant of three small refinery extension petitions.

  But in this case, a remand would only reverse the chosen remedy—not the hardship

  exemptions. Therefore, the EPA would still need to fashion another solution so that the

  exemptions offer the refineries meaningful relief. It is this case-specific reason that

  influences our conclusion that a judgment against the EPA would not be substantially

  likely to redress Producers of Renewables’ alleged injuries.

         Second, the petitioners in Renewable Fuels met their burden of persuasion to

  prove their standing to bring suit. They detailed before our court their injury. And unlike

  Producers of Renewables, the Biofuels Coalition delineated how the challenged small

  refinery exemptions caused their injuries. Toward that end, one of the petitioners’

  economists “identifie[d], as a percentage [of total renewable fuel obligations for the

  refineries in question], what the [contested] extensions granted to the Refineries

  represent[ed] in terms of all exempted volumes.” Id. at 1232. He also provided specific

  calculations for estimated revenue reductions for some of the petitioners’ members “due

  to the Refineries’ extensions.” Id. at 1232–33. The economist even “attest[ed] that

  ethanol prices would have been $0.08 per gallon higher in February 2018 absent these


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  extensions.” Id. at 1233. In contrast, Producers of Renewables provides no more than a

  broad, macro analysis of the RIN market.

                                   III. CONCLUSION

  Producers of Renewables lacks Article III standing. Accordingly, we DISMISS the
  petition for review.



                                             Entered for the Court


                                             Allison H. Eid
                                             Circuit Judge




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