Document 1g238J8DJLKkmzG4Zdm1ro5kX

ORAL ARGUMENT NOT YET SCHEDULED UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT RENEWABLE FUELS ASSOCIATION, AMERICAN COALITION FOR ETHANOL, BIOTECHNOLOGY INNOVATION ORGANIZATION, GROWTH ENERGY, NATIONAL BIODIESEL BOARD, NATIONAL CORN GROWERS ASSOCIATION, and NATIONAL FARMERS UNION, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. Case No.: MOTION TO HOLD CASE IN ABEYANCE PENDING FURTHER ADMINISTRATIVE PROCEEDINGS Petitioners Renewable Fuels Association, American Coalition for Ethanol, Biotechnology Innovation Organization, Growth Energy, National Biodiesel Board, National Corn Growers Association, and National Farmers Union (collectively "Renewable Fuels Ad Hoc Coalition," "Petitioners," or "Coalition") Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00180650-00001 hereby move for an order holding this case in abeyance pending further administrative proceedings, with a requirement to file a status report or appropriate motion periodically as described below. Counsel for Petitioners attempted to contact the Department of Justice by telephone about this Motion; Respondent was unable to give a position on this Motion as of the time of filing. In support of this motion, Petitioners state as follows: 1. Petitioners filed their Petition for Review on June 4, 2018, seeking review of 40 C.F.R. 80.1405(c), a regulatory provision the Environmental Protection Agency ("EPA") promulgated in 2010 as part of the rulemaking entitled "Regulation of Fuels and Fuel Additives: Changes to Renewable Fuel Standard Program," 75 Fed. Reg. 14,670 (Mar. 26, 2010) ("RFS2 Final Rule") (attached to the Petition for Review as Exhibit 1). The Petition for Review also sought review of a final agency action entitled Periodic Reviews for the Renewable Fuel Standard Program, 82 Fed. Reg. 58,364 (Dec. 12, 2017) (attached to the Petition for Review as Exhibit 2). 2. The Petition for Review asserts that new grounds for judicial review of these two final agency actions have arisen because the Coalition has learned, through credible news reports and testimony from Administrator Pruitt in April 2018, that EPA has granted a large number of retroactive small refinery hardship exemptions Sierra Club v. EPA 18cv3472 NDCA 2 Tier 2 ED 002061 00180650-00002 for calendar years for which Renewable Volume Obligations ("RVOs") had already been finalized. Petition for Review at 6. 3. Consistent with this Court's precedent in Oljato Chapter o f the Navajo Tribe v. Train, 515 F.2d 654, 666 (D.C. Cir. 1975), at the same time that Petitioners filed their Petition for Review in this Court, they also submitted an administrative petition to EPA requesting that EPA modify 40 C.F.R. 80.1405(c) and the abovecited Periodic Review. See Petition for Review Exhibit 3. This administrative petition is still under review at EPA. 4. Petitioners request that judicial proceedings in this matter be held in abeyance pending further administrative proceedings at EPA. A judicial stay is warranted to allow both the Agency sufficient time to review the petition and to encourage discussions between the Agency, industry stakeholders, and Congress toward a comprehensive administrative solution that would address several other unresolved renewable fuels issues in addition to retroactive small refinery exemptions, including this Court's remand in Americansfor Clean Energy, et al, v. EPA (No. 16-1005 and consolidated cases). Petitioners would like to give a potential administrative resolution a good faith opportunity to succeed before pursuing their Petition in this Court. 5. Given the lack of transparency with which EPA has handled the small refinery issue to date, Petitioners propose: that (a) EPA file a status report 3 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00180650-00003 regarding the administrative proceedings every 60 days; and (b) that the parties file an appropriate motion or motions to govern the proceedings within 30 days following any material change of administrative status that either or both parties contend should change the procedural status of the Petition for Review. CONCLUSION For the above-stated reasons, Petitioners respectfully request that this Court enter an order holding in abeyance all further judicial proceedings in this case and granting the procedural relief requested above in Paragraph 5. Date: June 4, 2018 Respectfully submitted, //s/ Matthew W. Morrison Matthew W. Morrison Cynthia Cook Robertson Bryan M. Stockton PlLLSBURY WlNTHROP SHAWPITTMAN LLP 1200 Seventeenth Street, NW Washington, DC 20036 T: (202) 663-8036 F : (202)663-8007 matthew. morrison@pillsburylaw. com cynthia.robertson@pillsburylaw.com bryan. stockton@pillsburylaw. com Counselfor Petitioners Renewable Fuels Association, American Coalitionfor Ethanol, Biotechnology Innovation Organization, National Corn Growers Association, and National Farmers Union 4 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00180650-00004 Seth P. Waxman David M. Lehn Saurabh Sanghvi Claire H. Chung Wilmer Cutler Pickering Hale and Dorr llp 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663-6000 seth.waxman@wilmerhale.com david. lehn@wilmerhale.com saurabh. sanghvi@wilmerhale.com claire. chung@wilmerhale. com Counselfor Petitioner Growth Energy Bryan M. Killian Douglas A. Hastings M organ, Lewis & B ockius LLP 1111 Pennsylvania Ave., NW Washington, DC 20004 (202) 373-6000 bryan.killian@morganlewis.com douglas.hastings@morganlewis.com Counselfor Petitioner National Biodiesel Board Sierra Club v. EPA 18cv3472 NDCA 5 Tier 2 ED 002061 00180650-00005 CERTIFICATE OF SERVICE I hereby certify that on June 4, 2018, the foregoing Motion to Hold Case in Abeyance Pending Further Administrative Proceedings was filed with the Clerk of the Court together with the accompanying Petition for Review. I hereby certify that on June 4, 2018,1will cause copies of the foregoing Motion to Hold Case in Abeyance Pending Further Administrative Proceedings to be served by certified mail, return receipt requested upon the following: The Hon. Scott Pruitt Administrator U.S. Environmental Protection Agency Ariel Rios Building 1200 Pennsylvania Ave., NW Washington, DC 20460 Correspondence Control Unit Office of General Counsel (2311) U.S. Environmental Protection Agency 1200 Pennsylvania Ave., NW. Washington, DC 20460 The Hon. Jeff Sessions Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00180650-00006 Jeffrey H. Wood Acting Assistant Attorney General U.S. Department of Justice Law and Policy Section Environment and Natural Resources Division 950 Pennsylvania Ave., N.W. Washington, D.C. 20530-0001 Dated: June 4, 2018 s/ Matthew W. Morrison Matthew W. Morrison Pillsbury Winthrop Shaw Pittman LLP 1200 Seventeenth Street, NW Washington, DC 20036 T: (202) 663-8036 F : (202)663-8007 matthew.morrison@pillsburylaw.com Sierra Club v. EPA 18cv3472 NDCA 7 Tier 2 ED 002061 00180650-00007