RFA’s Cooper: Group Intends to Ask DC Circuit Court For Rehearing on E15 Ruling

Source: By Todd Neeley, DTN Staff Reporter • Posted: Wednesday, July 21, 2021

LINCOLN, Neb. (DTN) — The Renewable Fuels Association is planning to petition the U.S. Court of Appeals for the District of Columbia for a rehearing of an E15 case that could jeopardize the year-round sale of the 15% ethanol blend of gasoline starting next year.

The RFA may be petitioning the D.C. Circuit for a rehearing before all 11 judges of the court and may possibly petition the Supreme Court on the case, the head of the group said in a July 15 letter to an EPA official.

The RFA asked the EPA to use its discretion to maintain the sale of E15 during the current high-ozone period through Sept. 15, RFA President and CEO Geoff Cooper wrote in the letter.

The D.C. Circuit recently ruled the agency lacked the authority to grant a Reid vapor pressure waiver to E15 to allow for year-round sales. Ethanol officials have indicated the court’s recent ruling likely would not affect E15 sales in the current driving season.

Cooper said in the letter to Lawrence Starfield, acting assistant administrator in the Office of Enforcement and Compliance Assurance at EPA, that the agency needs to take action to protect E15 sales for the current year.

“The court ordered that issuance of its mandate, and therefore its official vacatur of the E15 rule, would be delayed until seven days after the disposition of any timely petition for rehearing or petition for rehearing en banc,” Cooper said in the letter. “RFA, which intervened on behalf of EPA in the proceedings before the D.C. Circuit, intends to file a petition for rehearing on or before the Aug. 16, 2021, deadline for doing so and may also seek Supreme Court review. Co-intervenor Growth Energy may do the same.”

An en banc hearing is a hearing held before all judges in a particular circuit.

Cooper said in the letter an “immediate vacatur” of the E15 rule would cause “potentially drastic consequences” for U.S. biofuels producers and the gasoline market.

“If E15 sales were required to cease immediately upon issuance of the D.C. Circuit’s mandate, summertime E15 sales would fall precipitously,” Cooper said in the letter. “Certain oil companies already are advising their downstream blenders to cease blending E15. Termination of E15 sales will result in significant financial losses for retailers who had planned to blend E15 throughout the volatility control season, higher prices for U.S. gasoline consumers, and elimination of the environmental benefits that come with higher ethanol blends.”

Cooper said the EPA has the discretion to delay implementation of the court’s ruling. For example, the agency recently delayed a decision by the U.S. Court of Appeals for the 10th Circuit on small-refinery exemptions.

“Here, the parties to the D.C. Circuit proceeding will have 90 days from the date of the D.C. Circuit’s decision on any petitions for rehearing to file a petition for a writ of certiorari with the United States Supreme Court,” Cooper said in the letter. “It would be reasonable for EPA to refrain from enforcing vacatur of the E15 rule until the time for filing such a petition has run, and if a petition is filed, until resolution of the Supreme Court proceedings.”

Cooper also urged the EPA to develop a solution in response to the E15 ruling.

Read more on DTN:

“Appeals Court Throws Out E15 Rule,” https://www.dtnpf.com/…

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