Federal court denies E15 appeal

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An appeal of the Environmental Protection Agency’s decision to allow E15 into the fuel supply was denied this week in federal court.

The U.S. Court of Appeals for the District of Columbia denied a rehearing on the EPA decision that put E15, fuel that is 15 percent ethanol, on the market.

The National Marine Manufacturers Association was among the groups petitioning the court to reconsider a dismissal of the appeal in October.

Dissenting Judge Brett Kavanaugh said the EPA waiver “plainly violates” statutory text, according to court documents filed Tuesday.

“The panel’s decision to throw out the suit on standing grounds is mistaken in multiple independent ways, in my respectful view,” Judge Kavanaugh wrote in his dissent. “And the panel’s standing holding is problematic not only because of the erroneous standing law that it creates, but also because it is outcome-determinative in a case with significant economic ramifications for the American food and petroleum industries, as well as for American consumers who will ultimately bear some of the costs.”

“Today’s result is a win-win for American consumers, providing them with both a choice and savings at the pump, and is a critical step in increasing market access,” Tom Buis, CEO of Growth Energy, said in a statement.

Growth Energy represents ethanol producers.

“Today’s order leaves in place an earlier decision by the court denying challenges to the Environmental Protection Agency’s decision to allow for E15 to enter the U.S. market,” Buis said. “Furthermore, this is a major victory for the renewable fuels industry and opens the door for further investment in new fueling technology to offer E15 to consumers.”

In August, a three-member panel of judges from the U.S. Court of Appeals for the D.C. Circuit dismissed a challenge by several industry associations, including the NMMA, to allow E15 into the fuel supply.

The 2-1 decision was disappointing but procedural, Cindy Squires, the NMMA’s chief counsel of public affairs and director of regulatory affairs, told Soundings Trade Only in August.

Two judges said the plaintiffs did not have grounds to bring a case based on court precedents and, therefore, could not consider the merits of the arguments presented. The dissenting judge said the EPA had clearly overstepped its authority.

Opponents to the waiver then requested an en banc review, which means it asked that all of the judges of the D.C. Circuit Court rule on the case, creating a chance to change case law and review the plaintiffs’ arguments on the merits.

However, the court once again refused to grant the review, court documents show.

“The panel’s standing holding is outcome-determinative because EPA will lose if we reach the merits,” Judge Kavanaugh wrote in his dissent. “The E15 waiver plainly violates the statutory text.

“The statute does not allow a waiver for a new fuel if the waiver would cause failure of emissions standards in cars manufactured after 1974,” Kavanaugh continued. “The evidence is undisputed that this E15 waiver would cause failure of emissions standards in cars manufactured through 2000. Yet EPA still granted the waiver. EPA’s action simply cannot be squared with the statutory text.”

In December, the national motor club AAA voiced opposition to E15 in the fuel supply.

“With little consumer knowledge about E15 and less than 5 percent of cars on the road approved by automakers to use that fuel, AAA is urging regulators and the industry to stop the sale of E15 until motorists are better protected,” the group said in a statement.

Click here for the Growth Energy release.

— Reagan Haynes

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