Kern Oil & Refining Co. v. Usepa ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KERN OIL & REFINING CO., No. 19-71290
Petitioner, Environmental Protection Agency
v. ORDER
U.S. ENVIRONMENTAL PROTECTION
AGENCY,
Respondent.
On Petition for Review of an Order of the
Environmental Protection Agency
Argued and Submitted March 9, 2021
San Francisco, California
Before: McKEOWN, IKUTA, and BRESS, Circuit Judges.
Kern Oil & Refining Co. (Kern) seeks review of an Environmental Protection
Agency (EPA) decision granting Kern’s 2017 petition for a small refinery exemption
under the Renewable Fuel Standard program. See 42 U.S.C. § 7545(o)(9). EPA
acknowledges that a remand is necessary because the agency failed to provide an
explanation for its remedy decision. We therefore order as follows:
1. The matter is remanded to the EPA to determine the appropriate remedy
for Kern and to provide an explanation for that remedy.
2. Given the prior delays in this matter, which include EPA previously
failing to meet the 90-day deadline for acting on Kern’s hardship petition, see id.§ 7545(o)(9)(B)(iii), we instruct EPA to proceed expeditiously on remand and to
issue a new decision within 90 days of this order. EPA has not demonstrated a need
to await the Supreme Court’s forthcoming decision in Renewable Fuels Association
v. EPA, 948 F.3d 1206 (10th Cir. 2020), cert. granted sub nom HollyFrontier
Cheyenne v. Renewable Fuels Association, --- S. Ct. ----, 2021 WL 77244 (2021)
(No. 20-472), which presents different issues.
3. In the absence of a reasoned decision from EPA on Kern’s remedy, we
decline Kern’s request to order the EPA to provide Kern a specific remedy. See
Sierra Club v. EPA, 346 F.3d 955, 963 (9th Cir. 2003) (explaining that “the normal
course of action when the record fails to support an agency’s decision ‘is to remand
to the agency for additional investigation or explanation’” (quoting Florida Power
& Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). The remedy question is properly
left to the agency in the first instance. We trust, however, that the agency will give
due consideration to Kern’s arguments on remand.1
PETITION GRANTED; REMANDED.
1
Kern’s motion to complete or supplement the record, or alternatively for judicial
notice, Dkt. 62, is denied.
2