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A colossal court cop-out on ethanol case

NMMA president Thom Dammrich calls the court’s decision on the industry’s suit against the EPA’s E15 waivers “disappointing.” That’s because he’s too much of a gentlemen to call it what it really is — a freakin’ cop-out.

The truth is the 2-1 decision by the U.S. Court of Appeals for the D.C. Circuit to dismiss the complaint on jurisdictional grounds is outrageous. After all, we rely on our court system to adjudicate issues, not duck them. But when this court dismissed our industry’s case, saying we had no standing because we didn’t suffer enough harm, it was either (1) running away from the issue or (2) capitulating to the ethanol lobbying group, Growth Energy, that argued we had no standing — a ploy to avoid facing the real merits of the case.

The NMMA joined other trade groups — petroleum producers, engine and auto manufacturers and food producers — in filing the suit against the EPA. They challenged the EPA’s authority to grant a waiver allowing E15 under the Clean Air Act. The food producers argued that increasing the ethanol content of gasoline would drive up the price for corn, harming their members. Engine manufacturers, including the NMMA, said customers would misfuel their vehicles, boats or other small gas engines, damaging the equipment and voiding the warranties. The engine builders also argued it could put them in jeopardy of being sued by customers. Further, the engine and petroleum groups alleged that the EPA had not sufficiently tested E15.

It’s notable that the EPA did not challenge the standing of the NMMA or the others. Only Growth Energy did, in the name of supporting the EPA. While chief judge David Sentelle was joined by judge David Tatel in the majority opinion, judge Brett Kavanaugh vigorously dissented. In his dissent, Kavanaugh said food producers and the petroleum industry “will be palpably and negatively affected” by the EPA's decision to allow E15 into the market. Kavanaugh also said the EPA “lacks authority for the waiver” under the Clean Air Act. “I would therefore grant the petition for review and vacate EPA's E15 waiver decision,” he added.

Dammrich is confident that if the court had reviewed the merits of the case, as Kavanaugh obviously had, it would have found the EPA overstepped its authority for a partial waiver of E15. Still, the NMMA and the others in the group must now step back to evaluate options. And there are some.

One possibility is to have this decision reconsidered by the full D.C. Circuit. It’s called an “en banc hearing.” Another option could be asking the Supreme Court to review it. And, of course, there’s always the political pressure route. Certainly the groups being harmed by the E15 waiver, when viewed together, could combine to wield significant political influence. And, if this latter option is chosen, it will be necessary for all industry groups such as the MRAA, local and state marine trade associations, boat owner organizations and all manufacturing groups to become actively engaged in the battle.

What makes this whole issue so ludicrous is that we’re talking about a minor industry — ethanol — that adds little if any value to the economy, according to the Wall Street Journal. Still, it has been politically successful. So we continue to turn valuable food into fuel. More than 40 percent of our corn crop last year went into ethanol.

Clearly, if it weren’t for politics, the requirement that ethanol be blended into our fuel in any amount would likely have been dumped long before now. After all, ethanol makes up less than 1 percent of worldwide transportation fuel; it takes more energy to produce than it produces; it can damage millions of engines; it’s already causing rising food prices; and even the environmental lobby is against it because of the carbon-increasing deforestation it causes. Still, the court ducked the obvious.

One thing is clear: the NMMA and the others in the plaintiff group can’t quit now. We can expect a next step to be announced soon.

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