Industry back in court trying to kill E15

Source: Jeremy P. Jacobs, E&E reporter • Posted: Thursday, October 9, 2014

The oil and auto industries were back in court today challenging regulations stemming from U.S. EPA’s partial approval of gasoline blended with up to 15 percent ethanol, or E15.

The American Petroleum Institute and a coalition of engine manufacturers are asking the U.S. Court of Appeals for the District of Columbia Circuit to vacate regulations issued by EPA to prevent engines incapable of efficiently running on E15 from being accidentally misfueled.

But it quickly became clear at the appeals court that the challengers’ main problem was EPA’s approval of E15 in the first place.

Judge David Tatel wondered why this case was any different from the group’s previous challenge to that ruling. In Grocery Manufacturers Association v. EPA, the D.C. Circuit ruled in August 2012 that the auto, oil and food industries did not show they had standing to challenge the rule, meaning they hadn’t demonstrated how they were directly injured by EPA’s decision to approve the fuel for limited use (Greenwire, Aug. 17, 2012).

Tatel said that API has yet to provide any evidence that its members will produce E15, so, as in Grocery Manufacturers, it hadn’t shown the regulations directly affect the group.

“How is it any different here?” asked Tatel, a Democratic appointee. “I don’t understand the difference between this and Grocery Manufacturers.”

William Wehrum of Hunton & Williams LLP, representing the industry challengers, argued that the case was “fundamentally different.” He contended that EPA’s allowance of E15 onto the market changed the “rights and obligations” of petroleum makers.

After the ethanol industry petition EPA to increase the amount of ethanol allowed in fuel from up to 10 percent, EPA approved E15 in October 2010 for cars from model years 2007 or later. Then, in January 2011, it added models made from 2001 to 2006 to the approved list.

Senior Judge Stephen Williams, a Republican appointee, wondered whether any of API’s members were in fact producing E15. If one is, they could make a stronger case for having standing in the case.

He pressed Department of Justice attorney Eileen McDonough on whether EPA knows of such an API member. If so, Williams said, is EPA “acting properly” by making its standing argument?

McDonough countered that API has not produced any evidence to that effect and sought to assure the court that “we would not be making a standing argument unless we believed there was a problem.”

A decision in Alliance of Automobile Manufacturers v. EPA is expected in the next year.