Court rejects industry challenge to EPA fuel tests

Source: Amanda Peterka, E&E reporter • Posted: Wednesday, July 15, 2015

A federal court ruled today against a coalition of ethanol producers that challenged U.S. EPA’s rules for curbing sulfur in gasoline.

The U.S. Court of Appeals for the District of Columbia Circuit found that EPA acted within its authority when it limited the amount of ethanol in vehicle test fuels. EPA said tests were aimed at fuels that are commercially available.

“It is entirely commonsensical and reasonable for EPA to require vehicle manufacturers to use the same fuels in emissions testing that vehicles will use out on the road,” Judge Brett Kavanaugh wrote in the opinion today.

Before a carmaker can introduce a new vehicle, it must be certified by EPA as complying with emission standards. The case centered on the type of fuel that EPA requires car manufacturers to use to test their vehicles.

EPA said it prefers that automakers use E10, the more common blend of gasoline, containing 10 percent ethanol. The agency said it would allow vehicle makers to test with other fuels, but it determined that a new alternative fuel should be “commercially available” or “readily available nationwide.”

The Energy Future Coalition and eight ethanol producers challenged the rule in a lawsuit filed June 2014 on the grounds that EPA should have allowed cars to use E30, or a blend of gasoline with 30 percent ethanol. E30 is not commercially available.

The producers argued that EPA’s final rule created a Catch-22: EPA seeks higher blends of alternative fuels to be used in the market while at the same time restricting the test fuels that new cars are required to use for certification to lower blends.

The D.C. appeals court rejected that argument.

“To the extent a so-called catch-22 exists — which has been neither established nor conceded — it is the result of the statutory scheme adopted by Congress,” Kavanaugh wrote.

He noted that the Clean Air Act requires that EPA’s test fuels “reflect the actual current driving conditions under which motor vehicles are used, including conditions relating to fuel.”

EPA had asked that the court dismiss the producers’ lawsuit on the grounds that they lacked legal standing to bring a challenge. Although the three-member panel of circuit judges addressed that issue at oral arguments in March, Kavanaugh’s opinion today found that the groups satisfied the requirements for standing.

Oil industry groups had intervened on behalf of EPA.

Click here for the opinion in Energy Future Coalition et al. v. EPA and Gina McCarthy.