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POET Biorefining, LLC v. Environmental Protection Agency

ELR Citation: 50 ELR 20192
Nos. 19-1139, (D.C. Cir., 08/14/2020)

The D.C. Circuit denied in part and dismissed in part a petition to review EPA's guidance concerning the process of certifying cellulosic biofuel. A biofuel company argued the guidance was a legislative rule that was invalidly promulgated without notice and comment, conflicted with the regulation it purported to interpret, and imposed arbitrary requirements that were impossible to meet. The court concluded that the company's challenge to the guidance's treatment of "voluntary consensus standards body-certified" methods was unripe because no such method yet existed and the company's registration efforts relied on a peer-reviewed alternative. With respect to the company's challenge to the guidance's discussion of peer-reviewed methods, however, the court held that the guidance announced a final, interpretive rule that lawfully construed the underlying regulation. It therefore dismissed in part and denied in part the company's petition for review.