68 Am. U. L. Rev. 667 (2018).

* Senior Staff, American University Law Review, Volume 68; J.D. Candidate, May 2019, American University Washington College of Law; B.A., Economics, 2010, The George Washington University.  I would like to thank Professor William J. Snape, III for his guidance and insight; the American University Law Review staff for their tireless work and invaluable contributions; and Professor Elizabeth Earle Beske for her support and encouragement.  I would also like to dedicate this Comment to my grandfather, H. Thomas Summers, whose passion for knowledge remains an inspiration and suggests that the secret to longevity and happiness is to never stop questioning.

At the intersection of energy law, environmental law, and interstate commerce lies a complex piece of legislation called the Renewable Fuel Standard (RFS).  Aimed at increasing energy efficiency and supporting alternative fuel sources, the RFS requires that oil producers and importers offset their carbon footprints by obtaining and retiring compliance credits called Renewable Identification Numbers (RINs).  However, for major oil refiners, the financial burdens of this compliance system distribute unevenly.  Refiners that blend oil components into gasoline and diesel generate RINs as a byproduct of their business model, mitigating their compliance costs.  On the other hand, independent refiners that do not blend oil components into fuel must purchase RINs in a secondary market, often resulting in massive compliance costs. 

Because the RFS and its RINs compliance regime impact some refiners more than others, it has remained hotly debated since its expansion in 2007.  This RFS controversy arguably peaked in January 2018, when one of the largest oil refiners in the United States, Philadelphia Energy Solutions, filed for bankruptcy, citing RFS compliance costs as the root cause of its financial difficulties.  Industry backlash was swift enough that in October 2018, the Trump Administration announced that it had directed the Environmental Protection Agency, the executive agency charged with enforcing the RFS, to consider reforms aimed at increasing transparency and preventing price manipulation in the RINs market.

This Comment argues that the reforms suggested by the Trump Administration are insufficient to repair a compliance regime that is deeply flawed and beyond repair.  Instead, refiners like Philadelphia Energy Solutions—the so-called “losers” in the RFS compliance regime—should look to challenge the RFS on constitutional grounds.  Specifically, this Comment argues that refiners may challenge the RFS using Chief Justice John Roberts’s Commerce Clause holding from National Federation of Independent Business v. Sebelius, which stated that Congress may not compel market participation as an extension of its Commerce Clause power. 

This Comment examines both the RFS and the unsettled legacy of Chief Justice Roberts’s Sebelius decision, arguing that the latter provides refiners like Philadelphia Energy Solutions with a unique constitutional challenge to a thoroughly broken piece of legislation.