WASHINGTON — The ethanol industry was hit with a second upper court reversal in a week.
The D.C. Circuit Court of Appeals on July 2 reversed a 2019 Environmental Protection Agency rule that lifted restrictions on the year-round sale of a 15% ethanol fuel blend.
A week earlier, the U.S. Supreme Court overturned a 10th U.S. Circuit Court of Appeals ruling that struck down three small refinery exemptions granted by the previous EPA administrators.
In that ruling, the court rejected arguments that the EPA’s exemption power is limited to only a handful of refineries that have received uninterrupted annual waivers from the Renewable Fuel Standard.
The most recent case, American Fuel & Petrochemical Manufacturers, et al. vs. EPA, was a challenge by oil refiners to the rulemaking that allowed the year-round sale of E15.
U.S. EPA removed the summertime restriction on the sale of E15 in June 2019, lifting a 2011 ban on the gasoline blend. Retailers throughout most of the country were prohibited from offering E15 between June and September based on concerns it contributes to smog.
Under the June 2019 expansion, E15 was allowed to be sold year-round without additional Reid vapor pressure control rather than just eight months of the year. The one pound per square inch waiver for RVP was approved by EPA for year-round E10 sales in 1992, but not for E15.
Three judges on the U.S. Circuit Court of Appeals said it’s clear from federal law that Congress balanced “wide-ranging economic, energy-security and geopolitical implications” and that the wording of the law “reflects a compromise, not simply a desire to maximize ethanol production at all costs.”
They concluded Congress did not intend to allow ethanol blends higher than 10% to be widely sold year-round. They said the EPA overstepped its authority.
The Renewable Fuels Association, Growth Energy and the National Corn Growers Association were interveners on behalf of EPA in the case and issued a joint statement expressing disappointment in the court’s ruling: “We disagree with the court’s decision to reject EPA’s move to expand the RVP waiver to include E15, a decision that could deprive American drivers of lower-carbon options at the pump and would result in more carbon in the atmosphere.
“We are working to ensure the continuity of E15 sales through the 2021 summer season and beyond. This decision could impact summertime sales across all non-RFG areas where nearly two-thirds of retail sites offering E15 currently do business. If E15 in those markets were to end, summertime E15 sales would fall by 90%.
“We are pursuing all available options and will work with the administration and our congressional champions to ensure that we have a solution in place before the 2022 driving season.”
Rob Larew, National Farmers Union president, said the decision comes as a blow to American family farmers, rural communities and the environment, all of which benefit from mid-level blends of ethanol.
“This decision is just the latest in a series of setbacks when it comes to biofuels policies. Restricting the sale of E15 during the summer isn’t just outdated and unnecessary — it’s actively harmful. Family farmers, rural communities, drivers and the environment will all suffer as a result,” Larew said.
“Though we are deeply disappointed, we aren’t giving up the fight. To offer new market opportunities for farmers, create good rural jobs, improve air quality, provide more options for drivers and reduce greenhouse gas emissions from the transportation sector, we are urging Congress and the administration to look for other opportunities to expand the use of higher level blends of ethanol.”
“We are glad the court unanimously found that EPA lacks the authority to grant an RVP waiver to fuel containing more than 10% ethanol, consistent with how EPA interpreted its authority for nearly 30 years prior. There is no ambiguity in the statute and the previous administration’s reinterpretation overstepped the will of Congress,” said Chet Thompson, American Fuel & Petrochemical Manufacturers president and CEO.