The National Marine Manufacturers Association is reviewing its litigation options after a three-member panel of judges from the U.S. Court of Appeals for the D.C. Circuit dismissed the marine industry's challenge to allowing E15 into the fuel supply.
The 2-1 decision was disappointing, but was “procedural,” Cindy Squires, the NMMA’s chief counsel of public affairs and director of regulatory affairs, told Soundings Trade Only.
“Obviously this is a setback, but it’s not necessarily over unless we decide to say it’s over,” Squires said. “The whole decision really centered on this jurisdictional question of standing and didn’t get to the merits of the arguments.”
The plaintiffs working together on the case — coalitions from the manufacturing, food and petroleum industries — will decide what the next action before the court will be.
Two judges said the plaintiffs didn’t 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 Environmental Protection Agency had clearly overstepped its authority.
Squires said dissenting Judge Brett Kavanaugh’s comments were “heartening.”
“He made it abundantly clear that he felt that the EPA had overstepped its authority [by granting an E15 waiver], so that was very heartening,” Squires told Trade Only.
Kavanaugh said the waiver was “flatly contrary to the text of the statute.”
Judges David Sentelle and David Tatel ruled that the plaintiffs lacked standing to bring the case. Tatel said he was forced to concur with the decision that there was no jurisdiction even though he believed the D.C. Circuit case law to be wrong, Squires said.
“There are some who would look at that and say perhaps it opens the door for an en banc review because only the full court can change the case law precedent,” Squires said.
An en banc review would mean all members presiding over the D.C. Circuit Court would be asked to rule on the case, creating a chance to change case law and review the plaintiffs’ arguments on its merits.
Another option would be to ask the U.S. Supreme Court to review the case, Squires said.
The groups have about 45 days to decide how to move forward and the challenge to an EPA “misfueling rule” is still pending, Squires said. That case has been put on hold until the groups decide how to move forward.
— Reagan Haynes