The fight to reverse the EPA’s waiver allowing E15 hasn’t been lost despite the disappointing court decision in August.
Once again, industry leadership was evident when, on Sept. 28, the National Marine Manufacturers Association filed an appeal in the case, even at a time when funds are tight and one could argue for abandoning the issue on economic grounds. Instead, the NMMA has made the right move for all boating interests.
You’ll recall a three-judge panel from the U.S. Court of Appeals for the D.C. Circuit dismissed our industry's challenge to the EPA’s decision to increase ethanol from E10 to E15. Truth is, the court copped out of actually considering the merits of the case by dismissing the challenge on a jurisdictional question of standing. NMMA called the decision “disappointing.” But, Cindy Squires, the NMMA chief counsel of public affairs and director of regulatory affairs, said at the time that “it’s not necessarily over unless we decide to say it’s over.”
She was referring to the fact that the decision to dismiss was procedural and split 2-1. Moreover, dissenting Judge Brett Kavanaugh noted that he believed the EPA had clearly overstepped its authority in allowing E15. He said of the waiver that “EPA ran roughshod over the relative statutory limits,” and is “flatly contrary to the plain text of the statute.”
So what happens now? Three separate appeals have been filed by the three-group coalition that worked together on the original challenge. They are the Engine Products Group (includes the NMMA); the Food Groups and American Petroleum Institute; and the Petroleum Refiners and Marketers. Each group has asked for their standing to be reconsidered and this time each has filed separately because the facts and arguments for standing being presented are different.
“We’ve asked for a rehearing by our panel,” Squires says, “as well as a rehearing by the full D.C. Circuit.” The latter is called an en banc review, which means all presiding members of the D.C. Circuit Court are asked to rule on the case, thereby creating a chance to change case law and review our arguments on their merits.
But Squires also cautions there’s no guarantee of what will happen from here. Rehearings by the full court are not commonly done (only two were granted last year). Still, she feels the way Judge David Tatel wrote his opinion in concurring with Chief Judge David Sentelle that there seems to be a desire to have the full court address the standing question.
On the other side, the court has already asked Growth Energy to file a single brief that replies to all three of the requests for rehearing. Growth Energy, you’ll recall, is the ethanol industry lobbying group that pushed for the E15 waiver from the EPA in the first place and raised the issue of standing with the court against our original suit. Notably, the EPA did not challenge our standing.
It’s now sit and wait — again. Any decision isn’t likely to come quickly. Squires expects a six-month wait. Looking beyond that, we could appeal to the Supreme Court in the future. That’s a completely separate appeal process that can occur after this appeal is either denied or lost. And while there’s little more we can do at this juncture, we should all remain confident that if we can gain standing and get the merits of our suit considered, we will forward a winning case that the waiver granting E15 is simply outside the authority granted by the Clean Air Act.