Skeptical judges question EPA’s approval of E15

Source: Amanda Peterka, E&E reporter • Posted: Wednesday, April 18, 2012

Federal appeals court judges had tough questions for U.S. EPA today about its decision to allow a blend of gasoline and 15 percent ethanol for cars from model year 2001 and newer.

The challenge to the blend known as E15 by auto, oil, food and livestock groups will likely come down to whether the plaintiffs can satisfy the standing requirements to bring the case to court. The groups are challenging two partial waivers granted by EPA for E15 use in certain vehicles.

“You’ve got an excellent argument on the merits,” Chief Judge David Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit told the plaintiffs. “My problem is getting there.”

Although the judges seemed unsure whether some or all of the challengers have standing, Department of Justice attorney Jessica O’Donnell conceded EPA hadn’t raised that issue in its briefs.

The trade groups’ attorneys argued that their organizations have members that would be harmed by the introduction of E15 to the marketplace.

The food and livestock associations say E15 will spur increased production of corn ethanol and drive up the price of feed. Engine and auto trade groups have broadly opposed E15 on the basis that it damages car engines.

The three-member judicial panel also seemed skeptical of EPA’s interpretation of Clean Air Act provisions that give authority to the agency to grant waivers for new fuels.

Attorneys for the industry coalition argued that EPA prematurely approved E15 and lacked authority to allow some vehicles to use the fuel and to exclude others.

EPA defended its decision, saying it granted the waivers based on several tests and data sets, including a catalyst study from the Department of Energy, that showed the fuel would not damage car engines.

The statute clearly allows the agency to interpret it and allow for partial waivers, O’Donnell argued for EPA.

The lawsuit comes down to the word “any,” Judge Brett Kavanaugh said, and whether the word refers to the fact that EPA is allowed to grant a waiver only to all vehicles and not just some, as the challengers argue. The judges appeared to agree with the challengers.

“Is the administration interpreting ‘any’ to mean ‘some’? Is that what we’re being told?” Sentelle asked EPA’s attorney.

EPA says language in the statute allows the agency to interpret it more broadly and allow approvals of fuel for subsets of vehicles.

Even if the agency is correct about the interpretation, Judge David Tatel said, “the agency has conceded there will be failures” in cars from model year 2000 and older.

“Most of the vehicles on the road today … were not designed to handle E15,” said the industry groups’ attorney, William McBride.