Earlier this month, a group of Republican U.S. Senators, led by Ted Cruz (Texas) and Mike Lee (Utah), sent a letter to the Environmental Protection Agency (“EPA”) discouraging the agency from moving forward with a proposal to reallocate exempted renewable volume obligations pursuant to the agency’s Renewal Fuel Standard program. Loper Bright figured prominently in the coalition letter and, specifically, the legislators’ argument that Congress’s failure to authorize such reallocation by statute deprived the EPA of authority to do so in the face of statutory silence.
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The Cruz-Lee letter starts by highlighting the potential cost-impact for any level of reallocation, although it emphasizes that “smaller market and independent refiners” are likely to be hit hardest. The letter is even more noteworthy for its references to Chevron deference and Loper Bright. In its 2022 Renewal Fuel Standard rule, the EPA explicitly noted its authority for reallocation was based on its “reasonable” construction of the Clean Air Act, which was only defensible under Chevron’s judicial-deference regime: “[W]hile the statute does not specifically require EPA to redistribute exempted volumes . . . this is a reasonable interpretation of our authority under Chevron.”
