Supreme Court denies E15 challenge

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The U.S. Supreme Court denied a petition alleging that the Environmental Protection Agency overstepped its authority by allowing fuel with 15 percent ethanol, or E15, into the overall supply despite prohibiting its use in marine and other engines.

With no options left on that front, several groups, including the National Marine Manufacturers Association, will revisit a case aimed at protecting consumers from unwittingly filling tanks with E15 because the fuel has been shown to be harmful to many engines.

“The overall challenge to the EPA’s authority has been denied, simply based on a procedural issue,” Nicole Vasilaros, director of regulatory and legal affairs for the National Marine Manufacturers Association, told Trade Only Today. “The engine products group and the others involved, the lower court decided we were not the right parties to bring the case and unfortunately the Supreme Court did not take the case into consideration. They denied our petition.”

The NMMA is part of a coalition composed of fuel, manufacturing and food groups that had brought the case to the highest court in hopes of getting the EPA’s waiver to allow E15 into the marketplace overturned.

In August, the U.S. Court of Appeals for the District of Columbia said the plaintiffs didn’t have grounds to bring the case and therefore couldn’t consider the merits of arguments they presented. In January, the court denied a rehearing on the EPA decision. Dissenting Judge Brett Kavanaugh said then that the EPA waiver “plainly violates” statutory text.

Now the coalition will shift gears and revisit a court case alleging that the EPA has not done enough to prevent “misfueling,” or having E15 mistakenly land somewhere, such as in a boat, where it will harm the engine, Vasilaros told Trade Only.

“Now we’ll reopen misfueling litigation that we had set aside, pending this review,” Vasilaros said. “We want to make sure the EPA takes the correct precautions to prevent consumers from using fuel that’s strictly prohibited by the EPA for marine engines. We believe their current mitigation plan doesn’t do that.”

The EPA’s current mitigation plan consists largely of small signs labeling pumps and a 5-gallon minimum to ensure no E15 fuel is left in the hose and unwittingly gets into vessels that it could harm.

A survey last year found that 35 percent — six of 17 — of the registered sellers of E15 are not labeling the higher-ethanol gas at the pump, Trade Only reported in February. The survey also found that several service stations selling E15 were not registered as required by the Renewable Fuel Standard, which calls for an overall reduction in the fuel supply through the use of biofuels. The sellers of E15 are in Iowa, Kansas and South Dakota. The survey, performed by RFG Survey Association, did not name the retailers that weren’t in compliance.

The NMMA also is joining several groups, including the Marine Retailers Association of the Americas, to try to get some of the legislation in the Renewable Fuel Standard changed.

— Reagan Haynes

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