OpEd: Is E25 legal in the Mini Cooper?

Source: By Dave VanderGriend, UAI • Posted: Friday, November 17, 2017

EPA Administrator Scott Pruitt has said many times that he will “follow the law” and “if the statute permits.” This is good for us because the Clean Air Act is favorable to renewable fuels. But as you can imagine, nothing is easy in Washington.

When a law is passed, it is not fully flushed out and contains many gray areas. The task to clarify the details and write regulations falls on the governing agency. Those agency regulations end up being the force of law, good or bad. That is why many of ethanol’s roadblocks to a free market are stacked at the EPA’s door. The EPA’s lifelong bureaucrats have chosen to interpret the Clean Air Act in ways that are just flat wrong in some areas, and to say the least, unfavorable to ethanol in others.

So, as I look back on the year and review the good things Urban Air Initiative has accomplished, I see the legal work around the “sub-sim” interpretation of the Clean Air Act as the most critical. It has become one of the pillars of our legal arguments to allow higher blends of ethanol, above E10, into a free market. I want to focus on it here as our industry will be pointing to it in the years to come.

In an over-simplified explanation, the EPA has claimed the legal authority to regulate ethanol blends under section 211(f) of the Clean Air Act, known as the “sub-sim” law. Under EPA’s current interpretation of the sub-sim law, it can allow the use of gasoline blended with more than 15 percent ethanol only if the EPA determines that the blended fuel is substantially similar to the gasoline certification fuel, or if the fuel manufacturer demonstrates that the blended fuel would not impair a vehicle’s emission control system. This second route is the process Growth Energy used for the 2010 E15 waiver, which took many years and intense negotiation.

The difference between then and now is the new Tier 3 Certification Fuel contains 10 percent ethanol, whereas before it was E0. Effectively, E10 is now the official standard fuel of the U.S. So, there were 400 chemicals in gasoline, now there are 401. Gasoline with 10 percent ethanol is gasoline.

Now that this has changed, Urban Air’s legal argument is that the EPA’s choice to use 211(f) to regulate ethanol is no longer valid. Since the new gasoline certification fuel contains 10 percent ethanol, higher blends are “substantially similar” to a fuel additive already utilized in certification, and thus no longer controlled under section 211(f). Therefore, the EPA must regulate ethanol under section 211(c), just like it regulates all the other components of gasoline such as toluene, xylene, benzene, etc.

Before EPA can regulate a fuel additive under section 211(c), it must prove the additive is harmful to emission systems or human health. Our position is that ethanol must be regulated in the same way all the other chemicals in gasoline are. If a refiner wants to add more toluene, then ethanol must be given the same consideration.

The other major component of this argument is what we call a “burden shift.” Under the EPA’s outdated interpretation of section 211(f), the burden of proof is on the fuel manufacturer. Under section 211(c), the burden of proof is on the EPA. So, our industry should no longer have to ask permission and then wait for years to prove what we already know about ethanol’s beneficial effect on emissions and performance.

Now to the question: Is it legal to fill my BMW Mini Cooper with E25 that the manufacturer has approved in the owner’s manual? According to outdated, nonbinding guidance from EPA, the answer is “No.” Under an updated application of the sub-sim law as laid out above, the answer should be “Yes.” A waiver is not needed.

On a side note, BMW can ask for an E25 certification fuel, thanks to a lawsuit Urban Air fought and won against the EPA.

I’m proud of what Urban Air has accomplished this year along with the rest of the industry. We have a lot of work still to do, so I know what I will be asking Santa for this year.
I hope everyone and their families have a safe and blessed Christmas.

By Dave VanderGriend, President, Urban Air Initiative and CEO, ICM Inc.