On Tuesday, the D.C. Circuit Court heard oral arguments in American Fuel & Petrochemical Manufacturers, et al. vs. EPA, a case in which oil refiners challenge the Environmental Protection Agency’s 2019 rulemaking that paved the way for the year-round sale of E15.
Growth Energy, the Renewable Fuels Association, and the National Corn Growers Association defended the rule and also argued in support of upholding the rule allowing the 1-psi Reid Vapor Pressure waiver that currently applies to E10 during the summer months. Under the finalized expansion in May 2019, E15 was allowed to be sold year-round without additional RVP control rather than just eight months of the year.
In June 2019, EPA issued its final rule extending the RVP volatility waiver to E15 and found that E15 is substantially similar to E10 certification fuel, allowing its introduction into commerce by fuel manufacturers without the need for a separate E15 waiver. These actions allowed for the sale of E15 fuels year-round.
Meanwhile, the AFPM argued that the reinterpretation from EPA is an “overstep and edits the will of Congress.” An AFPM spokesman states, “After nearly 30 years of arguing that Clean Air Act Reid Vapor Pressure waivers apply to gasoline containing ‘at least 9% and no more than 10%’ ethanol, EPA is now claiming the exact opposite — that the statute is ‘ambiguous.’”
Biofuel supporters say oil refiners are now challenging the rulemaking in an attempt to “undermine the expansion of biofuels” in the nation’s fuel supply.
In a joint statement, Growth Energy, RFA, and NCGA said, "Oil refiners are simply trying to reclaim more market share by blocking American drivers from year-round access to a more affordable, lower-carbon fuel at the pump. Studies have repeatedly shown that the volatility of E15 is lower than that of E10.”
Pushing support of E15
On August 21, 2020, Growth Energy, RFA, and NCGA filed a brief as intervenors in the oil industry’s lawsuit against EPA’s regulation allowing year-round E15. The brief provided strong support for EPA’s position that parity in RVP regulations for E10 and E15 is consistent with the provisions of the Clean Air Act and the congressional intent behind those provisions. The organizations further pointed out that extending the volatility waiver from E10 to E15 is appropriate because the volatility of the fuel actually decreases as more ethanol is added into gasoline beyond E10.
The groups also cited recent studies revealing the climate benefits of transition from E10 to E15.
“Based on our analysis, we estimate that if the United States transitioned from E10 to E15 in the nation for 2001 and later model year vehicles, GHG emissions would be lower by 17.62 million tons per year, which is the equivalent of removing approximately 3.85 million vehicles from the road,” wrote the study’s authors, who utilized data collected from EPA, USDA and Argonne National Lab’s Greenhouse Gases, Regulated Emissions, and Energy Use in Technologies Model.
Currently, 98% of all gasoline contains about 10% ethanol, but more than 2,200 retail locations are now offering E15, and in 2020 – despite COVID-19 – retail sites offering E15 have increased 10%.
“If the refiners had their way and this rule was overturned, both volatile emissions and greenhouse gas emissions would increase,” the organizations stated. “EPA’s E15 rule should be upheld because it is consistent with Congressional intent and the Clean Air Act, good for the environment, good for the rural communities that rely on a strong biofuels industry, and good for American drivers who want more options at the pump.”
Although not part of the brief filed in support of EPA, the American Coalition for Ethanol also says EPA’s year-round E15 regulation was legally defensible.
“EPA’s interpretation of the Clean Air Act holding E15 to the same gasoline volatility standards as E10 is consistent with Congressional intent and reflects the realities of today’s motor fuel market. EPA’s ruling in 2019 cut the RVP red tape allowing more retailers to add the blend to their fuel slate and offer their customers a low carbon fuel with higher octane at a lower cost,” says ACE CEO Brian Jennings. “We trust the D.C. Circuit Court will see through the oil industry’s opposition to EPA’s rule as a not-so-veiled attempt to cling to their status-quo market share.”
AFPM contends to change the RVP waiver requires an act of Congress. “No Administration is empowered to reinterpret the Clean Air Act to mean something Congress expressly rejected,” the spokesperson notes. “When Congress has wanted to set a floor in statute, it does so explicitly — as it did elsewhere in the Clean Air Act. If there is any doubt over Congress’s intent on this matter, a 1990 Clean Air Act amendment that would have explicitly set an RVP waiver floor of ‘at least’ 10% ethanol was rejected in favor of the statute as written.”
An opinion on the litigation is likely to come in late summer.