Automakers ask Supreme Court to take up E15 case

Source: Amanda Peterka, E&E reporter • Posted: Wednesday, March 27, 2013

Automakers and small-engine manufacturers are asking the Supreme Court to take a case challenging U.S. EPA’s decision expanding the amount of ethanol allowed in gasoline.

In a 298-page petition, the trade groups argue that the U.S. Appeals Court for the District of Columbia inaccurately ruled that automakers and small-engine manufacturers didn’t have legal standing to protest EPA’s approval of E15, or gasoline containing 15 percent ethanol.

They are asking the high court to decide on standing, which hinges on whether they’ve suffered some sort of injury from EPA’s action, and on whether they have the ability to challenge the decision even if E15 use is voluntary.

Included in the writ of certiorari filed yesterday and announced today are the Alliance of Automobile Manufacturers, Association of Global Automakers, Outdoor Power Equipment Institute and National Marine Manufacturers Association.

“We feel strongly that this challenge to the E15 partial waiver needs to be considered on its merits, and not held back on a procedural issue,” Kris Kiser, president and CEO of the Outdoor Power Equipment Institute, said in a statement announcing the petition. OPEI represents manufacturers of lawn mowers, snowmobiles and similar small vehicles.

The groups were among several auto, oil, livestock and food organizations that last year challenged EPA’s approval of E15 for use in cars with model years 2001 or newer. In court arguments, they cited testing that showed E15 would damage car engines and potentially void the warranties of many cars on the road.

Gasoline containing 10 percent ethanol, or E10, is the standard used on the road today. EPA’s approval of E15 through the use of partial waivers of the Clean Air Act represented the first time the agency has approved a fuel for use in some cars and not others, and the organizations argued that the agency went beyond the scope of the law in doing so. Small-engine manufacturers said they worried about rampant misfueling by vehicles not approved for its use.

Ethanol trade group Growth Energy intervened on behalf of EPA. Last August, the three-judge appeals panel tossed the suit on the issue of standing (Greenwire, Aug. 17, 2012). The court later denied a petition by the groups to hear the case en banc.

“Standing is not self-evident for any of the entities petitioners represent,” Chief Judge David Sentelle wrote in his opinion. “EPA’s waiver decisions do not on their face directly impose regulatory restrictions, costs or other burdens on any of these types of entities.”

Judge Brett Kavanaugh dissented, arguing that all the groups presented adequate arguments to establish standing and that EPA overstepped its statutory authority by issuing a partial waiver.

In their petition to the Supreme Court, the engine groups argue that the appeals court ignored evidence that showed “consequential harm” and costs stemming from the introduction of E15.

“Because the majority of vehicles for which EPA has approved E15 were not designed to run on that fuel, E15’s increased combustion temperatures and corrosive effects on engine parts will shorten the useful life of most vehicles, including [model year] 2001 and newer vehicles,” the petition says.

The groups have also asked the Supreme Court to rule on whether an optional regulatory requirement could be treated as mandatory. They argue that, while EPA didn’t mandate the use of E15, the renewable fuel standard effectively requires them to use it for compliance.

“We believe EPA’s decision to grant partial waivers retroactively approving the sale of gasoline containing 15 percent ethanol (E15) for 2001 model year and newer passenger cars and light duty trucks is incorrect, as a matter of law, and will cause potential harm to vehicles not designed or warranted for such use,” Global Automakers President and CEO Michael Stanton said in a statement today. “The D.C. Circuit Court of Appeals refused to consider any of the legal challenges to the E15 waiver on the grounds that none of the petitioners, including the automobile manufacturers, had standing to challenge EPA’s actions.”

The American Petroleum Institute and several livestock and food groups earlier this year filed a similar appeal with the Supreme Court (Greenwire, Feb. 21).