The D.C. Circuit’s internal August 15 deadline for circulating opinions has come and gone, and the pace of opinions has started to slow. The court issued six opinions last week, only four of which involve administrative law. And it was a mixed bag for the agencies, as the court vacated multiple agency actions and regulations.

In Sinclair Wyoming Refining Co. v. EPA, the D.C. Circuit resolved several challenges to the EPA’s implementation of its Renewable Fuel Standard (“RFS”) program.

Under the RFS program, oil refineries must add renewable fuels, such as ethanol or biodiesel, into the nation’s fossil fuels. Small refineries can receive an exemption, however, if they would be “subject to a disproportionate economic hardship if required to comply.” In 2022, the EPA denied all of the exemption petitions that it received. The EPA based those denials on two premises: (1) the only costs that were relevant to showing “disproportionate economic hardship” were the costs of complying with the RFS program, and (2) small refineries didn’t bear any costs of complying with the RFS program because they could simply pass them on to their customers. So in the EPA’s view, complying with the RFS program couldn’t lead to economic hardship.

In a per curiam opinion, the D.C. Circuit (Judges Pillard, Rao, and Pan) vacated those denials on two grounds. First, the court held that the EPA’s interpretation of the phrase “disproportionate economic hardship” was unduly narrow. As the court explained: “EPA essentially considered compliance costs as the only qualifying economic hardship. The natural meaning of ‘hardship,’ however, encompasses more than compliance costs. … Costs can certainly impose a hardship, but the economic hardship imposed by a regulatory action can extend beyond costs.”

Second, the court held that the EPA’s economic theory—that small refineries could pass on all their compliance costs to their customers—was arbitrary and capricious. The court explained that (1) parts of the EPA’s theory contradicted its earlier views, and the agency had failed to explain the change, and (2) the record failed to support other parts of the EPA’s theory.

In addition to vacating these denials, the court rejected several challenges to other actions that the EPA had taken to implement the RFS program.

In Huntsman Petrochemical LLC v. EPA, the D.C. Circuit rejected a challenge to an EPA rule regarding ethylene oxide, a gas used to manufacture products such as antifreeze.

In 2020, the EPA determined that emissions of ethylene oxide from various sources posed an unacceptable risk of cancer for nearby residents. The EPA therefore issued a rule that tightened emissions standards for those sources. A chemical manufacturer and two trade associations challenged the rule, arguing (among other things) that the EPA’s risk assessment was flawed.

In an opinion by Judge Garcia, the D.C. Circuit rejected that challenge. The court held that the EPA’s risk assessment was entitled to an “extreme degree of deference,” and when judged under that standard, wasn’t arbitrary or capricious. In addition, the court held that the EPA hadn’t committed any procedural errors when issuing its rule, and that the petitioners had forfeited their argument that the agency’s statutory authority was an unconstitutional delegation.

In Interstate Natural Gas Ass’n of America v. Pipeline & Hazardous Materials Safety Administration, the D.C. Circuit vacated four standards issued by the Pipeline and Hazardous Materials Safety Administration, which regulates the safety of pipelines that transport natural gas and other dangerous materials.

In 2022, the agency promulgated a long list of safety standards, each of which was supported by a cost-benefit analysis. But four of those cost-benefit analyses had glaring flaws: two failed to consider important costs at all, one failed to recognize that the agency had imposed a new repair requirement on pipeline operators, and one simultaneously said that (a) the rule wouldn’t add any costs and (b) the rule would add costs, but it was hard to determine how much. As a result of those flaws, the D.C. Circuit (in an opinion by Judge Pan) vacated the four standards that were supported by those cost-benefit analyses. (The court also rejected a challenge to a fifth standard.)

In Doe v. SEC, the court affirmed the SEC’s denial of John Doe’s application for a whistleblower award.

Doe was an in-house counsel at an unidentified company. During his employment, Doe came to believe that the company, the company’s owner, and another individual were committing securities fraud. So Doe filed a whistleblower tip with the SEC, disclosing information that he learned while representing his client. After the SEC brought a successful enforcement action against the two individuals, Doe applied for an award under the agency’s whistleblower program. But the SEC denied his application. Under the agency’s regulations, an attorney may receive a whistleblower award only if the disclosure was permitted by the attorney’s state bar rules or the SEC’s attorney-conduct regulations. And according to the agency, Doe’s disclosure wasn’t permitted by either.

In an opinion by Judge Wilkins, the D.C. Circuit agreed. Doe argued that Florida’s Rules of Professional Conduct allow attorneys to disclose confidential information if the attorney “reasonably believes necessary” to “serve the client’s interests.” When Doe blew the whistle, however, he suspected that his own client was engaged in securities fraud and should be investigated by the SEC. As the court explained: “Common sense therefore dictates that Doe could not have reasonably believed that he was acting in his client’s best interest.”

The court also issued two non-administrative-law opinions: N’Jai v. U.S. Department of Education, which decided a question of personal jurisdiction under District of Columbia law, and NextEra Energy Global Holdings B.V. v. Kingdom of Spain, which decided several cases stemming from an arbitral dispute between a collection of Dutch and Luxembourgish energy companies and Spain.