Federal Court Denies E15 Rehearing

Biofuels, Ag Groups Vow to Push EPA for Permanent Remedy on E15

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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A federal court on Thursday denied a petition to rehear a case that could lead to the end of year-round E15 sales. (DTN file photo by Chris Clayton)

LINCOLN, Neb. (DTN) -- A federal court on Thursday denied a petition for a rehearing of a court ruling that could end year-round sales of E15.

Agriculture and biofuels groups had filed a petition with the U.S. Court of Appeals for the District of Columbia Circuit in August, asking for a rehearing of the case before all judges in the D.C. Circuit.

The National Corn Growers Association, Growth Energy and the Renewable Fuels Association said in a joint statement they will continue to press the EPA for the return of year-round E15 sales.

"Our petition for rehearing was an opportunity for the D.C. Circuit to remedy a decision that runs counter to legal precedent, and which, if maintained, threatens our nation's rural economy and progress on moving toward a clean energy future," the groups said.

"Today's petition denial is another hurdle to ensuring year-round access to low-carbon E15; however, due to timing, American drivers and retailers will be able to finish out the E15 summer driving season without disruption to their access to cleaner fuel choices at the pump. Moving forward, we continue to push for a permanent remedy long before the start of next year's summer driving season."

The groups' next legal option could be to petition the Supreme Court to hear the case.

A three-judge panel on the D.C. Circuit said in its July 2 19-page opinion on a case brought by refining interests that the so-called Reid-vapor pressure waiver rule that opened the door to E10 sales originally does not apply to E15, even though the Trump administration declared the two blends to be substantially similar fuels.

The Reid vapor pressure waiver, or RVP, is a measure of the volatility of gasoline.

The groups said the D.C. Circuit's ruling "conflicts" with the Supreme Court and previous rulings in the circuit and "defeats" the intent of Congress to expand ethanol use.

According to the Yale Journal on Regulation, the D.C. Circuit Court granted just eight en banc hearings from 2010 to 2017. All of the appeals courts combined grant between 80 and 90 en banc hearings each year.

Original restrictions on the sale of E15 were based on concerns about ozone pollution.

The E15 ruling was one of two legal setbacks for the biofuels industry this summer. The Supreme Court sided with refiners in a small-refinery exemptions case.

In October 2018, then-President Donald Trump directed EPA to allow year-round sales of E15.

Back in May 2020, the American Fuel and Petrochemical Manufacturers challenged EPA's action. The group argued that E15 is not a fuel substantially similar to E10, that the Reid vapor pressure waiver does not apply to blends higher than E10, and that the agency did not have the authority to "reopen" E15 waivers it granted for use in vehicles 2001 and newer.

On Aug. 21, 2020, the three groups filed a brief as intervenors in the oil industry's lawsuit.

The brief made the case that EPA's position on parity in RVP waiver regulations for E10 and E15 is consistent with the provisions of the Clean Air Act and the congressional intent behind those provisions.

The organizations argued extending the RVP waiver from E10 to E15 is appropriate because the volatility of the fuel decreases as more ethanol is added into gasoline beyond E10. RFA, Growth Energy, and NCGA also participated in oral arguments for the case.

On Aug. 16, 2021, the three organizations filed a petition for a rehearing, asking the three-judge panel and the full court to rehear the case because the decision conflicted with legal precedent and would harm the biofuels industry and others.

Read more on DTN:

"Appeals Court Throws Out E15 Rule,"

https://www.dtnpf.com/…

"President Opens up E15 Sales,"

https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

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Todd Neeley