The Supreme Court Deals Ethanol a Blow by Undermining the Renewable Fuel Standard — New Energy Risk

By Brentan Alexander, PhD; Chief Science Officer & Chief Commercial Officer

In June, the US Supreme Court ruled on a protracted legal and political fight that has pitted two pillars of the Republican base against each other since 2018. The case, HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association, involved a small refinery in Wyoming that sought relief at the court from a lower court ruling restricting the authority of the US Environmental Protection Agency (EPA) to provide relief to refiners under the Renewable Fuel Standard (RFS). The Supreme Court, in a 6–3 ruling, granted that relief and gave small refiners a win in their ongoing battle to weaken the RFS.

The RFS was established by Congress with the Energy Independence and Security Act of 2007. Formulated during a time of falling US oil production, the RFS mandates blending requirements in the domestic fuel supply for biofuels, primarily corn-ethanol. The legislation has an unusual set of supporters from across the ideological spectrum, as it offsets the use of fossil-based fuels while also providing immense economic benefits to Middle America. Under the RFS, the EPA sets annual “Renewable Volume Obligations” for a variety of biofuels that refiners must blend into finished fuels. To track compliance and enable burden sharing, a market-based system allows obligated parties to trade compliance credits (RINs). The D6 RIN, which relates to corn-ethanol, underpins an ethanol industry that generated more than $46 billion in revenues in 2018 alone.

The cost of the RINs is borne by refiners (and eventually the consumer), who must purchase sufficient RINs to “retire” with the EPA. When the RFS was established, Congress was concerned that the cost of compliance could put small refiners out of business. As a result, they exempted small refiners from RFS mandates for the early years of the program (through 2011) and further established a waiver process to further exempt qualifying refiners from the obligations of the RFS after this initial period if compliance would lead to “disproportionate economic hardship” for the refiner.

This bar was not reached by many petitioners during the Obama years, but upon the start of the Trump presidency in early 2017, the floodgates were opened. The number of waivers granted to refiners skyrocketed from under 10 to over 30 between 2016 and 2018. Large refiners were given waivers, eliminating overnight billions of gallons of ethanol demand. The EPA failed to increase mandates on the remaining obligated refiners to compensate for this reduced demand. Prices for ethanol and the D6 RIN collapsed, and many ethanol plants closed as a result. Chuck Grassley (R-IA) complained that the EPA “screwed us.” Unsurprisingly, the ethanol industry sued, starting the journey that led to last week’s Supreme Court decision.

The case came down to the meaning of the word “extension,” which I previously wrote about here. The statutory language allows a “small refinery [to] at any time petition for an extension of the exemption.” Lower courts ruled that an extension is only meaningful if there is a valid in-force exemption to extend in the first place. Under this logic, any lapse in an exemption eliminates any further ability to extend, restricting exemptions to refiners who had valid and continuously granted exemptions from the start of the RFS. Since most exemptions granted under the Trump Administration were to refiners without active exemptions, this decision invalidated a large number of waivers, a major win for the ethanol industry.

The Supreme Court overruled this interpretation. Writing for the majority, Justice Gorsuch found that the ordinary meaning of “extension” does not imply a continuity of the exemption, comparing the situation to a request for an extension on homework. Gorsuch wrote, “Think of the forgetful student who asks for an ‘extension’ for a term paper after the deadline has passed. The tenant who does the same after overstaying his lease, or parties who negotiate an ‘extension’ of a contract after its expiration.”

The win for the refiners undercuts the RFS, opening it to further political meddling. With a change in administration, scores of refiners with prior exemptions could apply and get their waivers reinstated, eviscerating ethanol demand. Worse still, an unfriendly administration could simply undo the RFS by rolling back mandates, waivers or not: The EPA is charged under the RFS with setting the blending mandates annually, and the statute provides no guidance on appropriate blend levels after 2022.

It’s too soon to say how the ruling will impact the market and the value of the D6 RIN. Even before this ruling, small refiners had slowed their RIN purchases considerably in the hope of a win, pulling their demand from the market. Prices dropped around 6% after the Supreme Court decision was released, bringing the D6 RIN price to $1.55, down from its 2021 high but still roughly double its value from the start of the year. Markets are likely factoring in the stability of the Biden Administration coupled with continued increases in ethanol demand as COVID impacts ease and oil demand recovers. The RFS seems safe for the near future, but the fate of the program after 2024 remains uncertain.

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Originally published at https://newenergyrisk.com on July 20, 2021.

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New Energy Risk

New Energy Risk

New Energy Risk helps insure technical risk for breakthrough tech to optimize cost of capital, accelerate time to market, and provide certainty of execution.

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