Oil, food groups urge Supreme Court to take up E15 challenge

Source: Amanda Peterka, E&E reporter • Posted: Friday, February 22, 2013

Nine groups led by the American Petroleum Institute and the Grocery Manufacturers Association asked the Supreme Court to take up a case challenging U.S. EPA’s decision to expand the level of ethanol allowed in gasoline.

The U.S. Court of Appeals for the District of Columbia Circuit last year dismissed the case, finding that none of the petitioners had legal standing to challenge Clean Air Act waivers allowing E15, or gasoline containing 15 percent ethanol, into the marketplace.

The groups — a subset of the original petitioners — are asking that the Supreme Court reverse that decision.

“The D.C. Circuit incorrectly concluded that none of the 17 petitioners had standing to challenge the E15 partial waivers,” said Bob Greco, director of API’s downstream activities.

Aside from API and GMA, the groups filing the petition today are the American Meat Institute, National Chicken Council, National Council of Chain Restaurants, National Pork Producers Council, National Turkey Federation and Snack Food Association.

In its arguments in front of the appeals court, the oil industry had argued it had standing because of the infrastructure changes it must make to accommodate the new fuel. Food and livestock groups, on the other hand, argued they had standing because E15 would create greater competition for corn.

“The procedural grounds on which the D.C. Circuit based its decision to dismiss our petition are in doubt,” Louis Finkel, executive vice president at the Grocery Manufacturers Association, said today. “All the while, the issues at the heart of our case continue to go on unanswered.”

In the decision last year, Judge Brett Kavanaugh was the only dissenting opinion. He argued that the groups did present adequate arguments to establish standing and that EPA had overstepped its statutory authority by issuing a partial waiver for a fuel blend for the first time in history (Greenwire, Aug. 17, 2012).

EPA approved E15 for use in cars with model years 2001 and newer in two separate Clean Air Act waivers in 2010 and 2011. The appeals court ruling last August was a victory for the ethanol industry, which has pushed for the introduction of E15 to expand the amount of ethanol that can be used in the market.

Ethanol trade groups today slammed the Supreme Court petition but said it came as no surprise.

“There is nothing unexpected in this announcement; in fact, it is not even news. We know that the oil companies are going to do everything within their power to restrict access of a price-competitive product,” said Tom Buis, chief executive of Growth Energy. “They will stop at nothing to keep consumers from having a choice at the pump of a better-performing, homegrown and less expensive, renewable fuel.”

The original case also included refining groups and auto manufacturers. Greco said those groups were continuing to explore how to respond to the appeals court decision.