EPA Opposes SCOTUS E15 Ruling Review

Source: By Todd Neeley, DTN Staff Reporter • Posted: Sunday, December 12, 2021

Biden Administration Asks SCOTUS to Deny Ethanol Industry E15 Petition

EPA asked the Supreme Court this week to deny an ethanol-industry petition to consider a lower court ruling that ended year-round E15 sales. (DTN file photo)
EPA asked the Supreme Court this week to deny an ethanol-industry petition to consider a lower court ruling that ended year-round E15 sales. (DTN file photo)

LINCOLN, Neb. (DTN) — EPA will not defend the Trump-era rule that allowed for year-round E15 sales, the agency said in a court brief filed with Supreme Court. The agency asked the court to reject an ethanol-industry petition for review of a lower court’s vacation of the rule.

Absent a Supreme Court reversal of the July ruling by the U.S. Court of Appeals for the District of Columbia, EPA said there were two options for bringing back year-round E15.

Either a state would have to petition the agency to put E10 and E15 on equal regulatory footing in states with high ozone levels in the summer, or Congress would have to act to change the law.

In October, Growth Energy asked the court to consider whether EPA has the authority to allow year-round E15 sales and whether the Circuit Court erred in vacating the rule.

“As a legal matter, the effect of the decision below is to restore the interpretation of Section 7545(h)(4) that EPA maintained for most of the past three decades,” EPA said in the brief to the court.

The agency told the court there were a number of “economic, administrative and logistical” barriers to widespread adoption of E15.

“Experience under the E15 rule demonstrated that those concerns were well-founded, because no rapid expansion of E15 usage has occurred,” EPA said.

“Petitioner asserts that, according to its own recent analysis, the number of retail stations selling E15 increased from about 1,300 to almost 2,500 while the E15 rule was in force. Those figures are not as probative of the rule’s effect as petitioner suggests, but even taking them at face value they indicate that E15 was available at less than 2% of all fuel-retail stations.

“In and of itself, reversing the decision below would not allow E15 to be sold more easily during the summer in the areas of the country affected by the E15 rule.”

REGAN PRESSED ON E15

On Thursday, the Renewable Fuels Association, American Farm Bureau Federation, Growth Energy, National Corn Growers Association, National Farmers Union and the National Sorghum Producers asked EPA Administrator Michael Regan to consider making the regulatory change agency attorneys talk about in their latest brief.

“Specifically, we believe EPA should require the use of lower-RVP (Reid vapor pressure) summertime conventional gasoline blendstocks (i.e., 8.0 psi in attainment areas) for mixing with all ethanol blends,” the groups said in a letter to Regan.

“This would render the 1-psi waiver unnecessary for the sale of both E10 and E15 during the summer ozone control season, resulting in fewer GHG (greenhouse gas) emissions and slightly lower emissions of the pollutants that contribute to ozone formation.”

Year-round sales of E15 have been limited because the fuel has been ineligible for the 1-psi Reid vapor pressure waiver that allows the sale of certain ethanol fuel blends at 10 psi during the summer ozone season. The Reid vapor pressure waiver is a measure of the volatility of gasoline.

As a result, E15 has been subject to a stricter summertime volatility limit of 9 psi than E10, which is eligible for the waiver and can be sold at 10 psi.

A three-judge panel on the D.C. Circuit said in its July 2 opinion on a case brought by refining interests that the RVP waiver rule does not apply to E15. The Trump administration, when creating the E15 rule, had declared the two blends to be substantially similar fuels.

The groups said the D.C. Circuit’s ruling “conflicts” with the Supreme Court and previous rulings in the circuit and “defeats” the intent of Congress to expand ethanol use.

In October 2018, then-President Donald Trump directed EPA to allow year-round sales of E15.

In May 2020, the American Fuel and Petrochemical Manufacturers challenged EPA’s action.

On Aug. 21, 2020, RFA, Growth Energy, and NCGA filed a brief as intervenors in the oil industry’s lawsuit.

Read more on DTN:

“Ethanol Petitions Supreme Court on E15,” https://www.dtnpf.com/…

“Groups Press EPA’s Regan to Act on E15,” https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

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