Court again tosses E15 challenge on lack of standing

Source: Amanda Peterka, E&E reporter • Posted: Wednesday, October 22, 2014

A federal court has once again struck down an industry challenge over U.S. EPA’s approval of gasoline containing 15 percent ethanol.

The U.S. Court of Appeals for the District of Columbia Circuit today ruled that a coalition of oil and auto trade groups lacked legal standing to challenge regulations stemming from EPA’s decision to allow the gasoline to be used in cars with model years 2001 and newer.

The petitioners failed to establish standing “because they cannot show that their members have suffered or are threatened with suffering an injury in fact that is traceable to the regulation and redressable by a favorable decision,” the court wrote.

The court decided in the form of a per curiam ruling, which is used for cases judges don’t think deserve a formal opinion.

In their lawsuit, the American Petroleum Institute and a coalition of engine manufacturers arrayed under the Engine Products Group asked the circuit to vacate regulations issued by EPA to prevent engines incapable of running on E15 from being accidentally misfueled. But in oral arguments earlier this month, the challengers appeared more concerned about EPA’s approval of E15 in the first place (Greenwire, Oct. 6).

After the ethanol industry petitioned EPA to increase the amount of ethanol allowed in fuel from up to 10 percent, the agency approved E15 in October 2010 for cars from model years 2007 or later. In January 2011, EPA approved the fuel for use in models from 2001 to 2006.

Two years ago, the appeals court upheld EPA’s approvals of E15, tossing an industry challenge also on the grounds that the petitioners lacked legal standing (Greenwire, Aug. 17, 2012). The Supreme Court later declined to take up the case.

The appeals court said today that the decision in that case, Grocery Manufacturers Association v. EPA, dictated that it dismiss this new challenge by oil and engine groups.

The American Petroleum Institute failed to show that any of its members actually sold E15 at gas stations, while the Engine Products Group could not offer evidence showing that sales of E15 had resulted in injuries such as warranty claims and product liability lawsuits, the court said in today’s three-page ruling.

The court also rebuffed industry’s argument that vehicle owners in some places will “have no choice” but to use E15 because of a lack of gasoline containing 10 percent ethanol, the fuel that makes up about 95 percent of the gasoline market today.

“EPG provides no evidence that E15 has displaced or is likely to displace E10 in such a way as to drive consumers to use E15 for want of adequate E10 supplies,” the court wrote.

There are 85 gas stations in 12 states selling E15, according to the Renewable Fuels Association.