DC Circuit reverses EPA rule on E15
The U.S. Court of Appeals for the District of Columbia Circuit today reversed a 2019 rule by the Environmental Protection Agency that E15 gasoline, a 15% ethanol blend, could be sold year round with few restrictions.
Oil refiners challenged the rule in the case, American Fuel & Petrochemical Manufacturers, et al. vs. EPA.
EPA had long held that E10, a 10% ethanol blend, was safe from concerns about high levels of vaporization that could affect the functioning of gasoline powered vehicles, but for many years E15 could not be sold in the summertime on the grounds that the vaporization level was too high.
In 2019, EPA issued its final rule extending the Reid Vapor Pressure volatility waiver to E15, and found that E15 is substantially similar to E10. The court said that Congress did not intend the law EPA used to make the ruling apply to E15.
The ruling followed a Supreme Court ruling last month that made it easier for refiners to apply for exemptions from the Renewable Fuel Standard that governs the use of ethanol in the nation’s fuel supply.
Growth Energy, the Renewable Fuels Association and the National Corn Growers Association said today they disagreed with the decision and added, “We are working to ensure the continuity of E15 sales through the 2021 summer season and beyond.”
“This decision could impact summertime sales across all non-RFG areas where nearly two-thirds of retail sites offering E15 currently do business. If E15 in those markets were to end, summertime E15 sales would fall by 90%. We are pursuing all available options and will work with the administration and our congressional champions to ensure that we have a solution in place before the 2022 driving season.”
RFA President and CEO Geoff Cooper added, “Today’s decision from the D.C. Circuit Court is a heavy blow to the ethanol industry, retailers across the country, and consumers looking for cleaner, greener fuel options.”
“If, as a result of this decision, EPA were to return to the summertime ban on E15, it would reverse the tremendous progress we’ve made on reducing GHG emissions from transportation, growing markets for America’s farmers, and lowering fuel costs for consumers.
“In the wake of today’s decision, RFA and its partners are exploring all of our options to protect and expand the market for lower-cost, lower-carbon E15.
“It is sadly ironic that the refiners crying about high RIN credit prices and tight RIN stocks are the same refiners that are trying to halt E15 expansion and artificially constrain the supply of RINs. This is just another case of refiners cutting off their nose to spite their face.
“But in the end, we are confident that global outcry and demand for low carbon fuels will win out over the refiners’ deep pockets and their incessant campaign to protect dirty petroleum’s market share.”
Iowa Renewable Fuels Association Executive Director Monte Shaw said in a separate news release, “We are very disappointed by today’s decision to strike down EPA’s rule that makes it easier to sell E15 year-round in all markets.”
“It is still our view that the law allowing an RVP waiver for blends containing 10% ethanol can and should be applied to E15, which does contain 10% ethanol, and a little more. There is no scientific or environmentally-sound reason to erect arbitrary barriers to the sale of E15 in the summer months, which has lower combined evaporative and tailpipe emission than either E0 or E10.
“Today’s decision really turned this section of the Clean Air Act on its head.
“Every legal, regulatory and legislative option will be pursued to reverse this decision. We are confident that as this issue continues to work its way through the legal and regulatory process, E15 sales during this summer’s driving season will not be impacted.
“The key will be to find a solution by June of 2022 to ensure the rug is not pulled out from under fuel retailers across the country who have added E15 to their stations, banking on the certainty EPA provided to offer the fuel all year. Ethanol producers will not abandon these retailers as we continue to find a path for E15 to be sold all year long.
“It is painfully ironic that last week we lost an important RFS lawsuit when the Supreme Court found that agencies could broadly construe the word ‘extension,” while today the D.C. Circuit Court rules against us because an agency did not employ the most narrow and limiting definition of the word ‘contains.’ Perhaps last week’s Supreme Court loss sowed the seeds of this decisions future reversal.”
Growth Energy, RFA, and NCGA participated in oral arguments for the case on April 13, 2021.
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