EPA’s refinery exemptions denial not subject to Congressional Review Act, GAO says

Details: GAO concluded in a report Thursday that the agency’s actions fall within the definition of an “order” — not a rule — and are not subject to the CRA’s requirement that they be submitted to Congress. The CRA provides a vehicle for lawmakers to undo recent agency rulemaking through a simple majority vote.

GAO was responding to a June request from Sens. Bill Hagerty (R-Tenn.), Shelley Moore Capito (R-W.Va.) and Roger Wicker (R-Miss.) to determine whether EPA’s action on the small refinery exemptions constitutes a rule that would be subject to the CRA. Spokespeople for the senators did not immediately provide comment.

Under the RFS program, refiners must blend minimum volumes of renewable fuels into the nation’s fuel supply, but can petition the agency for an exemption. EPA last year finalized a decision to deny 69 pending small refinery exemption petitions, arguing the refineries did not face disproportionate economic hardship caused by compliance with their volume obligations.

GAO concluded Thursday that the action falls within the definition of an order because its purpose was to “provide the final disposition” of particular small refinery exemption petitions.

Background: EPA has said the action was not a rulemaking, but the senators wrote that it appeared “to be an agency statement of future effect that is designed to implement, interpret, and prescribe law and policy” and could meet the definition of a rule.