Supreme Court Consider E15 Case during Jan. 7 Conference

Environmental Protection Agency, Federal Agency/Executive Branch, Federal Litigation, Federal Regulation, Justice, Marketing/Market Forces and Sales, Opinions, Policy

December 30, 2021

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by Erin Voegele (Ethanol Produce Magazine) The U.S. Supreme Court is scheduled to consider whether it will review a July 2, 2021, decision handed down by the U.S. Court of Appeals for the D.C. Circuit that vacated a U.S. EPA rule allowing year-round E15 sales during its Jan. 7 conference.

The EPA issued a rule in June 2019 extended the 1-pound-per-square-inch (psi) Reid vapor pressure (RVP) waiver to E15. The rule found that E15 is substantially similar to E10 certification fuel and allowed for year-round sales of the fuel blend. Prior to the rule, E15 could not be used to fuel non-flex fuel vehicles in summer months.

Days after the EPA finalized the rulemaking, the American Fuel and Petroleum Manufacturers filed a petition for review with the D.C. Circuit Court of Appeals. Oral arguments pertaining to the challenge were held in April 2021 before a panel of three judges.

The court on July 2 issued it opinion, holding that Section II of EPA’s rule exceeds the agency’s authority under Section 7545 of the U.S code, which addresses the regulation of fuels. As a result, the court vacated that portion of the rule. Section II addresses the application of the 1-psi waiver to E15.

Growth Energy, the Renewable Fuels Association and National Corn Growers Association filed a petition on Aug. 16 asking the full court to rehear the case, arguing that the decision handed down by the three-judge panel conflicts with precedent set by both the Circuit Court and the U.S. Supreme Court. That petition for rehearing was denied by the U.S. Court of Appeals for the D.C. Circuit on Sept. 9.

Growth Energy escalated its challenge to the D.C. Circuit Court’s ruling on Oct. 4 by filing a petition asking the U.S. Supreme Court to review the lower court’s decision.

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The Department of Justice filed its response on Dec. 8, calling on the court to deny the writ of certiorari. READ MORE

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