Industry objection to E15 gets its day in court

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The D.C. Circuit Court was the scene last week of oral arguments in the industry’s lawsuit to prevent the distribution of E15. We must now wait for the court to issue its ruling, the timing of which is unknown.

The National Marine Manufacturers Association has been the leader in a fight to keep E15 off the market and, in particular, out of marine engines. As part of a coalition, NMMA is opposed to the Environmental Protection Agency’s approval of a 2009 petition, by Growth Energy (the ethanol lobby) on behalf of 54 ethanol makers, for a 50 percent increase in the amount of ethanol in gasoline from the current E10 to E15. The industry’s arguments were presented to the court for NMMA by attorney Michael McBride, and for the other plaintiffs by counsel Cate Stevens.

The suit contends EPA has no authority to grant a “partial” waiver sought by the ethanol producers. EPA first approved E15 in October 1010 for use only in cars newer than 2007. As predicted, a second “partial” waiver was later granted, expanding the approval to include vehicles 2001 and newer. (E-15 was not approved for use in boats.)

The petition by Growth Energy was submitted under section 211 of the 1990 Clean Air Act. But an examination of that section does not grant authority to allow waivers, much less “partial” waivers. While EPA was considering the petition, thousands of objections (many from marine dealers) were submitted citing damages that would result from E15 to billions of dollars in engines from marine to lawn mowers. This included auto manufacturers who said that using E15 will void auto warranties. But, EPA pandered to the corn and ethanol producers with a “partial” waiver that is certain to lead to mass confusion and dangerous misfueling if E15 gets to the marketplace. It left NMMA and the coalition with little choice but to file the suit.

While it’s well documented how E15 will damage marine engines, it also raises big concerns even for autos. This is no more obvious than in the fact that Toyota and Lexus have begun embossing their gas caps with the universal symbol for NO (a circle with a diagonal line thru it) and lettered with “Up to E10 Gasoline Only,” to let their owners know they should not put anything higher than E10 in their vehicles.

Looking at this from a broader perspective, the Clean Air Act has greatly improved our environment by, for example, reducing smokestack industry emissions with technology like scrubbers and electrostatic precipitators, a major expectation when the act was passed. But over time, federal agencies like EPA administratively expand their reach and can create more problems than they solve. Gasoline is a great example.

The CAA called for minimum standards to reduce emissions of dangerous chemicals from gasoline in the country. This, in turn, led to EPA demanding many states create additional standards. Today, the Government Accountability Office says there are up to 70 blends of gas being sold in some 34 states. Moreover, the regulations created under the CAA may very well be outdated and ineffectual, given improvements in such things as auto emissions and gas mileage. But this allows refiners to charge more for these special blends. That might even be justified if it were documented that these requirements actually contribute to cleaner air. However, there is no data that supports such a claim for ethanol!

It’s obvious, then, that once the EPA makes a rule it’s extremely hard to get it changed, even if it’s no longer relevant. That is reason enough to hope the court rules favorably on the lawsuit filed by NMMA and the coalition.

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