Iowa AG Brenna Bird Sues EPA over Ethanol Rules, Saying It 'Dragged Its Feet' on E-15 Sales

August 08, 2023

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by Galen Bacharier (Des Moines Register) Iowa Attorney General Brenna Bird is suing the Environmental Protection Agency, as Iowa and Nebraska try to force the agency to issue final rules allowing the year-round sale of gasoline blended with 15% ethanol.

The Republican attorney general's lawsuit, filed in Iowa federal court, seeks to have the EPA issue regulations allowing E-15 gasoline to be sold during the summer.

Gov. Kim Reynolds and several other Midwestern governors requested last year that E-15 be sold during the summer — which triggered a 90-day deadline for issuing regulations that the states say the EPA did not follow.

"The Biden administration has dragged its feet long enough,” Bird said in a statement.

The EPA passed emergency waivers both last year and this summer allowing for the continued sale of E-15, which is gasoline blended with 15% ethanol, in Midwestern states. Those waivers were widely praised by Iowa leaders, though they also criticized the decision as coming late.

In March, the EPA proposed a rule allowing year-round sales of E-15 in Iowa and seven other states, starting in 2024. Elected officials in the Hawkeye State welcomed the plan but criticized it for not taking effect this summer.

Reynolds, in a statement issued minutes after Bird announced the lawsuit Monday, expressed support for the lawsuit and criticized the agency.

"The EPA’s ongoing failure to act following our E-15 notification more than two years ago is nothing more than a thinly veiled disguise of their disdain towards clean, renewable, American-produced ethanol," Reynolds said. "The EPA disfavors anything that doesn’t have the word 'electric' in its name."

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Under current regulations, Bird and Reynolds say, limitations on E-15 are more stringent than those on gasoline blended with 10% alcohol during the summer. READ MORE

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RFA Thanks Iowa and Nebraska AGs for Taking Action on Year-Round E15 (Renewable Fuels Association)
Iowa, Nebraska sue EPA over failure to act on Midwest E15 petitions (Ethanol Producer Magazine)
Iowa and Nebraska Sue EPA Over E15 Waiver Delay (Energy.Agwired.com)
Nebraska, Iowa Sue EPA on E15 Request: Nebraska, Iowa Sue EPA for Missing Deadline to Finalize Year-Round E15 Sales (DTN Progressive Farmer)
ATTORNEYS GENERAL FILE SUIT AGAINST EPA FOR E15 AUTHORIZATION DELAY (Brownfield Ag News)
Iowa, Nebraska Sue EPA To Force Final Approval Of E15 Fuel In Midwest (Inside EPA)
Ethanol industry says EPA taking too long to finalize summertime E15 (DRG News; includes AUDIO)
Iowa, Nebraska sue EPA to force year-round high-ethanol fuel (The Hill)
Ethanol Blog: State-Level Corn, Ethanol Groups Urge EPA to Finalize E15 Rule for Eight States (DTN Progressive Farmer)
WHERE’S THE E15 WAIVER? ETHANOL GROUPS SAY THEY’RE WAITING (Brownfield Ag News)
E15 DEBATE CONTINUES: Some members of Congress are frustrated that consumers still don’t have permanent year-round access to E15. (Brownfield Ag News)
YEAR-ROUND E15 SALES APPROVAL COULD BE DECEMBER (Brownfield Ag News)
Bird drops lawsuit as EPA approves summer sale of E15 in 2025 (Iowa Capital Dispatch)

Excerpt from Renewable Fuels Association: Today (August 7, 2023), the attorneys general of Iowa and Nebraska filed a complaint in federal court regarding the U.S. Environmental Protection Agency’s failure to meet a statutory deadline for promulgating regulations that would reduce evaporative emissions and allow year-round sales of E15 in at least eight Midwest states. In April 2022, the governors of those states petitioned EPA to make the regulatory change; according to the statute, EPA should have finalized the regulatory amendments requested by the governors more than one year ago.

The regulations, which EPA proposed in March, would require fuel suppliers in these states to slightly reduce the volatility of gasoline beginning on May 1, 2024, which would reduce the potential for evaporative emissions and facilitate year-round sales of E15 blends.

“We thank Attorneys General Brenna Bird and Mike Hilgers for taking action to ensure EPA expeditiously finalizes the regulatory changes sought by the governors,” said RFA President and CEO Geoff Cooper. “As we noted in a letter to EPA last week, the marketplace needs time to coordinate and prepare for implementation of these regulations. We have strongly encouraged EPA to finalize the rule before the end of this summer, and we’re hopeful that the action taken by Iowa and Nebraska today will help break the logjam and cause EPA to complete the process as soon as possible.”

Cooper noted that EPA issued temporary emergency waivers to allow continued E15 sales this summer and last summer, but said a long-term solution is needed. “We greatly appreciate the emergency action taken by EPA the past two summers to extend fuel supplies, avert shortages, and keep pump prices lower by allowing continued E15 sales during the summer,” Cooper said. “However, a permanent solution that provides stability and clarity to the marketplace is needed. Finalizing and implementing the governors’ petition as soon as possible will provide the certainty the marketplace is looking for.” READ MORE

Excerpt from Ethanol Producer Magazine: “The Biden Administration knows that increasing access to E15 will help consumers obtain some relief from the rising cost of gasoline, provide support for our farmers, and strengthen U.S. energy security during a turbulent time,” said Nebraska Attorney General Hilgers. “Earlier this year the administration recognized as much when it issued a temporary waiver. There is no reason that waiver shouldn’t be made permanent.”

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“Last summer, American families found savings ranging from 16 cents to nearly a dollar per gallon by filling up with E15,” said Emily Skor, CEO of Growth Energy. “Studies have also shown that E15 not only saves money at the pump; it delivers immediate benefits in the fight against particulate matter, carbon monoxide, and smog-forming pollutants.

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E15 has been available for use in many non-flex fuel vehicles for more than a decade. The U.S. EPA first granted a partial waiver allowing E15 to be used in model year (MY) 2007 and newer light-duty vehicles in 2010. The agency expanded that waiver to include MY 2001 and newer vehicles the following year. The fuel blend, however, could not be sold in most markets during the summer driving season, from June 1 through Sept. 15. A June 2019 rulemaking changed that, extending the 9-psi RVP waiver to E15 and allowing the fuel to be sold during the summer driving season. The EPA’s rule was challenged by oil groups and in June 2021 the D.C. Circuit Court of Appeals vacated the portion of the June 2019 related to E15, overturning the ability for fuel retailer sell the fuel blend year-round.

Although the EPA’s rulemaking allowing nationwide year-round sales of E15 was vacated in mid-2021, the fuel blend has remained available during both the 2022 and 2023 summer driving seasons. President Joe Biden in April 2022 announced that the EPA would issue an emergency waiver allowing E15 to be sold during the summer 2022 driving season in response to high fuel prices caused by Russia’s invasion of Ukraine. A similar waiver was issued by the EPA in April 2023, allowing sales of E15 to continue this summer. Once finalized by the EPA, the pending Midwest E15 rule would allow summertime E15 sales to continue in Illinois, Iowa, Minnesota, Missouri, Nebraska, Ohio, South Dakota and Wisconsin starting next summer.

A full copy of the petition filed by the attorneys general of Iowa and Nebraska is available on the Iowa Department of Justice website. READ MORE

Excerpt from DTN Progressive Farmer: Monte Shaw, executive director of the Iowa Renewable Fuels Association, said the states are running out of time to be able to complete the work needed to sell E15 by the summer of 2024.

"After showing incredible patience and giving the agency every chance to act on their own, it seems it may take a court order to get the EPA to finalize the E15 rule," Shaw said in a statement.

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"Even with the public comment period on the draft rule closed for months and no substantive objections raised to the proposal, the EPA has neither finalized the rule, nor laid out a timeline for action," the IRFA said. READ MORE

Excerpt from DTN Progressive Farmer: One day after attorneys general in Iowa and Nebraska sued the EPA to force the agency to finalize a rule to allow permanent E15 sales in eight Midwest states, state-level corn and ethanol groups asked EPA Administrator Michael Regan to finish the rule "immediately."

"Fuel refiners and suppliers in Midwest states say they need sufficient lead time to make supply chain modifications before the governors' petition takes effect next summer. Finalizing the rule before the end of September 2023 would provide all parties with more than enough time to make any necessary changes to their operations."

The groups said although they "greatly appreciate" emergency action taken by EPA this year to continue E15 sales this summer, they said the temporary waivers are "not a sustainable, long-term solution. The marketplace needs a permanent solution and greater certainty for year-round E15 moving forward. Expeditious finalization of the proposed rule would provide that certainty and stability for 2024 and beyond."

The letter is signed by the Iowa Corn Growers Association; Iowa Renewable Fuels Association; Iowa Ethanol; Renewable Fuels Nebraska; Nebraska Corn Growers Association; Nebraska Ethanol Board; North Dakota Ethanol Producers Association; Missouri Renewable Fuels Association; Wisconsin Biofuels Association; North Dakota Corn Growers Association; Missouri Corn; Wisconsin Corn Growers Association; Minnesota Ethanol; Minnesota Corn Growers Association; Minnesota Bio-Fuels Association; Illinois Corn Growers Association; Illinois Renewable Fuels Association; South Dakota Ethanol; Ohio Ethanol Ohio Corn and Wheat Growers Association; South Dakota Corn Growers Association; Renew Kansas; Kansas Corn Growers Association; and Indiana Ethanol. READ MORE

Excerpt/Comment from Brownfield Ag News: Steve Vander Griend says: ... Maybe the Governors of these Midwest States should just take a bold step and approve E15 and higher blends at the state level. EPA has allowed the oil industry to manipulate the emission models that result in E15 supposedly making air quality worse. There are plenty of studies showing that simply adding ethanol to current E10 lowers emissions. Thus, states should approve E15, and higher blends based on the requirement that ethanol is only added to current E10 certified fuels. If oil companies want to oppose this limitation of simply adding ethanol, let them put forth vehicle studies that show how they can make a better fuel other than simply adding ethanol. We should not allow ethanol to be the scapegoat for oil refineries making a lower performance gasoline, or at least that is how EPA models E15.

We don’t fix the problems facing ethanol by first starting in DC. Asking DC to require a boutique fuel for just a few states will raise fuel prices about as much as the cost savings of E15. READ MORE

Excerpt from Brownfield Ag News: Republican U.S. Senator Chuck Grassley of Iowa tells Brownfield the Consumer and Fuel Retailer Choice Act needs to get passed sooner rather than later. He believes the Biden administration would support the bill.

“It’s kind of embarrassing to the administration when 10 or 12 governors want E15 year-round and the president doesn’t,” Grassley said.

The legislation, authored by U.S. Senators Amy Klobuchar (D-MN) and Deb Fischer (R-NE), would allow for the year-round, nationwide sale of E15 by permanently extending the Reid vapor pressure (RVP) volatility waiver to ethanol blends above 10 percent. It would also prohibit the removal of the 1-psi waiver for E10 ethanol, ensuring uniformity across fuel markets.

Republican Congressman Mike Flood of Nebraska says he supports a recent lawsuit against the Environmental Protection Agency for its delay in authorizing year-round E15 sales. He tells Brownfield yearly-emergency waivers are not the answer.

“Would we accept this in any other part of our government where we wait until the very last minute for somebody to do the same thing that they’ve done every year before? Let’s provide some consistency and some reliability,” Flood said.

Grassley says expanded E15 access helps lower fuel prices and provides certainty for farmers and consumers. READ MORE

Excerpt from Iowa Capital Dispatch: Iowa Attorney General Brenna Bird announced what she called “a resounding victory” over the Biden administration on Tuesday as the EPA approved the year-round sale of E15 motor fuel beginning in 2025.

Bird, a Republican, said the sale of E15, a 15% ethanol blend, will provide Iowans with a cheaper and cleaner option at the gas pump next summer when the new rule takes effect.

In April 2022, a group of Midwest governors that included Iowa’s Kim Reynolds petitioned the Environmental Protection Agency for a rule that would allow their states to sell E15 gasoline during the summer in addition to the previously approved fall, winter and spring seasons. In August 2023, Bird and Nebraska Attorney General Mike Hilgers filed a lawsuit against the EPA, challenging the agency over its failure to act on the proposal.

On Tuesday, after the EPA announced it was approving the year-round sale of E15 beginning next year in the states that had requested it, Bird said she’d be dropping the lawsuit.

Monte Shaw of the Iowa Renewable Fuels Association said that the EPA’s decision was overdue and he commended Reynolds and Bird for their actions.

“There is no doubt that Bird’s actions spurred the decision forward at critical moments,” he said. “We appreciate her defending the clear rights of governors under the Clean Air Act. Now we will continue to work with Gov. Reynolds and the Iowa congressional delegation to find a solution for E15 during this summer.”

“Today’s victory is a win for families and farmers across the state,” Bird said in a written statement. ““While the EPA dragged its feet, we fought back.” READ MORE