Advanced BioFuels USA

by Erin Voegele (Ethanol Producer Magazine) The U.S. Department of Justice on Dec. 8 filed a brief urging the U.S. Supreme Court to deny a writ of certiorari filed by Growth Energy seeking the review of a lower court’s decision that vacated a U.S. EPA rule allowing year-round sales of E15. The brief points to alternative solutions to court review, including addressing the issue via a legislative fix.

Growth Energy on Oct. 4 filed a writ of certiorari asking the Supreme Court to review a July 2 decision handed down by the U.S. Court of Appeals for the D.C. Circuit that vacated a 2019 rule issued by the U.S. EPA allowing year-round sales of E15.

That EPA rule, issued 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.

In that petition, Growth Energy argues that the decision did not give proper deference to EPA, contradicted Congressional intent in promoting renewable fuels, and would suppress the expansion of higher-blend renewable fuels in the future.

The government’s response to Growth Energy’s Oct. 4 petition was originally due Nov. 8. The Supreme Court, however, granted a motion allowing the government a one-month extension.

The Department of Justice filed its response on Dec. 8. “The central question in this case is whether the CAA’s reference to fuel blends ‘containing gasoline and 10 percent * * * ethanol,’ 42 U.S.C. 7545(h)(4), can reasonably be interpreted to encompass fuel blends that contain more than 10 [percent] ethanol,” the department wrote in its brief. “Although EPA offered sound arguments in defense of its position below, the court of appeals examined Section 7545(h)(4)’s text and history and reached a different conclusion. The D.C. Circuit’s holding does not conflict with any decision of this court or any other court, and it has limited legal and practical consequences. As a legal matter, the effect of the decision below is to restore the interpretation of Section 7545(h)(4) that EPA maintained for most of the past three decades. And as a practical matter, a number of economic, logistical, and administrative barriers unrelated to the rule at issue here independently impede the widespread use of E15. This court’s review is not warranted.”

The Department of Justice also points out that the EPA’s E15 rule is not the only mechanism by which E15 supporters can seek to produce increased use of the fuel blend. “A separate CAA provision allows a State to request that EPA remove the additional 1-psi allowance for ‘all fuel blends containing gasoline and 10 percent * * * ethanol’ for any area of the State in which the allowance ‘will increase emissions that contribute to air pollution.’ 42 U.S.C. 7545(h)(5)(A),” the department wrote. “ If EPA granted such a request, E10 and E15 would be placed on equal footing in the affected areas, potentially prompting the development of fuel blends that can satisfy the 9.0 psi volatility limit using either E10 or E15—just as has occurred in areas of the country that use reformulated gasoline.”

The brief also points to the possibility of a congressional fix to the E15 rule, noting Congress could amend Section 7545 to make clear that fuel blends that have a volatility of 10 psi and that contain more than 10 percent ethanol may be sold during the summer. 

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