In Sinclair Wyoming Refining Company, LLC v. United States Environmental Protection Agency, No. 22-9530 (10th Cir. July 5, 2023),  the Honorable Scott M. Matheson, Jr. of the United States Court of Appeals for the Tenth Circuit dismissed a petition for review filed by Sinclair Wyoming Refining Company, LLC (“Sinclair”) of an email from the United States Environmental Protection Agency (“EPA”) for lack of jurisdiction because it was not a final agency action.  Sinclair applied for a hardship exemption from EPA’s Renewable Fuel Standards for compliance year 2018 and, when EPA did not immediately respond, submitted Renewable Identification Numbers (“RINs”) in compliance with the regulations.  Sinclair’s application was initially denied by EPA and later reconsidered and approved.  Sinclair asked EPA in two separate emails to return the RINs that it had submitted for calendar year 2018.  In April 2022, the Director of EPA’s Fuel Compliance Center responded to Sinclair’s email, stating, in relevant part, that “the 2018 RINs [would] not be returned… .”  Sinclair filed the petition for review of EPA’s April 2022 email.

The Clean Air Act grants circuit courts jurisdiction over final actions of EPA.  42 U.S.C. § 7606(b)(1).  In dismissing the petition for review, Judge Matheson found that the email was not a final agency action, as “[it] did not (1) consummate EPA’s decision-making, (2) determine Sinclair’s rights or obligations, (3) impose legal consequences, or (4) exercise adjudicatory discretion.”  Id., at *5.  After reviewing the timeline of events following Sinclair’s request for a hardship exemption in 2018, Judge Matheson found that there were two final EPA actions pertaining to Sinclair’s denial, which Sinclair did not appeal.  First, EPA issued a notice denying all small refinery applications submitted for compliance year 2018, finding that none of the refineries, including Sinclair, had demonstrated sufficient disproportionate economic hardship in light of the United States Supreme Court’s decision in HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association, 141 S. Ct. 2172 (2021).  Second, EPA issued a compliance action stating that refineries who were initially granted exemptions in 2018 could continue to comply using an alternative approach to the submission of RINs, but that the alternative approach was not available to those who were originally denied an exemption, such as Sinclair.  The April 2022 email, Judge Matheson reasoned, simply restated EPA’s established position, and therefore was not a final agency action.

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