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Ethanol industry pursues final legal avenue on year-round E15

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Growth Energy files petition to take fight of whether E15 legal to U.S. Supreme Court.

Ethanol and corn producers continue to claim 15% ethanol fuel is safe for year-round use. However, courts have overturned a waiver of limits on Reid Vapor Pressure. In its last legal avenue to overturn previous rulings, Growth Energy is asking the United States Supreme Court to consider its case.

Growth Energy filed Monday a petition for certiorari in the United States Supreme Court, asking the Court to review a D.C. Circuit opinion in American Fuel & Petrochemical Manufacturers, et al. vs. EPA, in which the D.C. Circuit vacated a 2019 EPA rule allowing year-round sales of a 15% ethanol fuel blend. 

“We are asking the U.S. Supreme Court to review this decision because it is not in line with important court precedent on statutory interpretation and because of its detrimental environmental impacts,” says Growth Energy in a statement.

The Clean Air Act prohibits the summertime sale of gasoline whose volatility, measured in Reid Vapor Pressure, exceeds 9 pounds per square inch. Blending ethanol into gasoline increases the gasoline’s volatility. So, to promote the use of ethanol in gasoline, the Act includes an ethanol waiver that increases the summertime volatility limit by 1 pound per square inch for fuel blends containing gasoline and 10% denatured anhydrous ethanol. The question presented is whether EPA may interpret the ethanol waiver provisions to apply to fuel blends who concentration of ethanol exceeds 10%.

The D.C. Circuit decision overturned EPA’s interpretation of a provision of the Clean Air Act that extended a waiver of limits on RVP, a measure of fuel volatility, to E15. Growth Energy argues that the decision did not give proper deference to EPA, contradicted Congressional intent in promoting renewable fuels, and would suppress the expansion of higher-blend renewable fuels in the future. 

In June 2019, EPA issued its final rule extending a waiver of RVP volatility limits to E15, allowing the fuel to be sold year-round in conventional gasoline markets. Shortly thereafter, oil refiners challenged the rulemaking in the D.C. Circuit Court of Appeals in an attempt to undermine the expansion of biofuels in our nation’s fuel supply. 

"In 2019, EPA paved the way for the sale of E15 year-round. Its decision was not only a win for the biofuels industry, our ag partners, and rural America, but for the environment and all drivers nationwide. Low-carbon biofuels like ethanol burn cleaner and reduce greenhouse gas emissions by 46% compared to gasoline,” Growth Energy notes. “E15 is approved for use in 95% of cars on the road; year-round consumer access to this higher blend of biofuel will further decarbonize our current auto fleet.”

Growth Energy participated as an intervenor in the case in support of the RVP rule. Growth Energy’s brief provided strong support for EPA’s position that parity in RVP waivers for E10 and E15 is consistent with the text of the Clean Air Act and with Congressional intent. Growth Energy argued that because fuel volatility and evaporative emissions decrease when ethanol fuel blends increase beyond E10 (a 10-percent ethanol fuel blend), extending the RVP waiver from E10 to E15 furthers Congress’s interest in promoting the environmental benefits of renewable fuels. The industry group also participated in oral arguments for the case. 

On July 2, 2021, the D.C. Circuit Court of Appeals vacated the 2019 rule. On Aug. 16, 2021, Growth Energy, RFA and NCGA filed a petition for rehearing with the D.C. Circuit, asking the three-judge panel and the full court to rehear the case because the decision conflicted with binding precedent and had exceptionally significant consequences for the biofuels industry and others. This court denied the petition on Sept. 9, 2021. 

National Corn Growers Association President Chris Edgington, a farmer from Iowa, concedes there are no easy answers on the year-round E15. With Growth Energy’s petition to the Supreme Court, this is the last avenue on the legal front, he explains.

Edgington says NCGA will continue to work with whatever other avenues become available and continue to push the value of E15 year-round use. “We do have Congressional champions to add a few words to legislation to allow E15 to be sold year-round,” Edington says.

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