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Lawsuit seeks to block E15

The National Marine Manufacturers Association and several other groups today filed suit in the U.S. Court of Appeals for the D.C. Circuit challenging an Oct. 13 decision by the Environmental Protection Agency to partially approve E15 for a subset of on-highway motor vehicles.

The NMMA is joining the Outdoor Power Equipment Institute, the Alliance of Automobile Manufacturers and the Association of International Automobile Manufacturers in a newly formed coalition called the Engine Products Group

"NMMA regrets having to pursue litigation on this matter, but it is clear that EPA has not fulfilled its statutory obligations to ensure the safe introduction of E15," NMMA president Thom Dammrich said in a statement. "Consequently, we and our industry partners have determined that it is necessary to seek relief in the courts in order to protect our manufacturers and our consumers."

"Throughout this process, NMMA has strongly and consistently urged full scientific testing on marine engines and equipment, as required by law, and the rational evaluation of policy mechanisms to protect consumers from misfueling and product failures associated with incompatible fuels, and regulatory actions to ensure that compatible fuels remain available and affordable," Dammrich said. "EPA has failed in each regard and approved E15 in contravention of its clear statutory requirements."

The EPA did not immediately return calls this morning seeking comment.

The EPA's Oct. 13 decision is based on a petition submitted by the pro-ethanol organization Growth Energy and 54 ethanol producers.

The NMMA and the other members of the Engine Products Group are not the first to file suit to challenge the EPA's partial waiver on E15. The American Petroleum Institute and several food industry groups, such as the Grocery Manufacturers Association and the National Meat Association, filed a similar petition with the court last month.

Mat Dunn, the NMMA's legislative director, said other petitions could be filed before the Jan. 3 deadline.

The EPA's decision granted a partial waiver approving the sale of gasoline containing 15 percent ethanol for 2007 model year and newer passenger cars and light trucks. Older-model cars and marine engines were among those excluded from the decision, but industry experts fear that it will cause confusion among consumers.

The EPA's decision also called for a label so that consumers can clearly distinguish E15 from other gasoline.

Last week, a group of 24 organizations, including those representing the marine industry, asked the EPA to allow an additional 60 days for public comment on proposed regulations designed to prevent misfueling with E15. The deadline is currently Jan. 3.

"We're going to continue to pursue both tracks," Dunn told Soundings Trade Only, adding that there's no way to know how long the legal action will take.

"We would hope that the court would move fairly expeditiously in our challenge and that EPA would agree to a rapid schedule so that we could move this through the pipeline as quickly as possible," he said. "We hope that the legal challenge will be resolved prior to E15 coming into the market. We think, in general, we have a little bit of time before we start seeing E15 at the pump, which is why we're going ahead with this legal challenge now."

However, he added, the legal challenge does not prevent the EPA from moving forward with its final rule.

Today's petition specifically asks that the EPA's decision be remanded back to the agency. It also requests judicial oversight and review over whether EPA's "partial waiver" approval for E15 fuels violates federal Clean Air Act provisions that limit the circumstances under which the EPA can approve applications for new fuels and fuel additives.

The petition challenges the EPA's authority to grant a partial waiver for three reasons:

  • The Clean Air Act does not authorize the EPA to issue "partial waiver" decisions.
  • The EPA's own statute, which Congress passed in 2007, says fuels that could cause any failures can't be approved for the market. E15 has been shown to adversely affect engines in non-road products and later-model-year vehicles, cause emission failures and increase air pollution because of misfueling. Further, administrative records fail to demonstrate that even new model-year motor vehicles (other than "flexible fuel vehicles") would not be damaged and fail when run on E15.
  • The testing upon which EPA made its decision was placed in the administrative record too late to permit meaningful comment or scrutiny from concerned groups and stakeholders.

Click here for group's petition on E15.

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