SCOTUS Denies Year-Round E15 Petition

LINCOLN, Neb. (DTN) -- The EPA would have to act in order for year-round E15 sales to restart after the Supreme Court denied Growth Energy's request for a hearing in orders handed down Monday.

Though the court's denial was a significant loss for the ethanol industry, two other agriculture-related petitions are still alive before the court.

A National Pork Producers Council's petition on California's Proposition 12, which took effect on Jan. 1, has been moved to the Supreme Court's Jan. 14 conference, according to an NPPC spokesperson. The same is true for a Clean Water Act petition filed by Michael and Chantell Sackett.

EPA ACTION REQUIRED ON E15 SALES

If year-round E15 sales are to be restarted it will depend on new action by EPA.

Growth Energy CEO Emily Skor said in a statement to DTN her group would continue to push for expanded E15 sales.

"We are certainly disappointed that the court did not grant our petition to review the D.C. Circuit's opinion, which vacated EPA's well-reasoned decision to extend the seasonal RVP waiver to E15, fuel that has a lower RVP than E10," she said.

"The Clean Air Act provides ample authority for EPA to pave the way for the expansion of E15 nationwide and year-round and increase access to cleaner fuel for all Americans. Growth Energy will continue to explore all potential avenues to make unfettered access to E15 a reality."

PROPOSITION 12

Proposition 12 bans the sale of pork from hogs that don't meet the state's new production standards. A federal appeals court upheld the law.

The law requires hog producers to abide by certain regulations to sell pork in California.

Voters in the state passed Proposition 12 in 2018 with nearly 63% of votes supporting it. The law forbids the sale of whole pork meat in California from hogs born of sows not housed in conformity with the law. Proposition 12 forbids sows from being confined in such a way that they cannot lie down, stand up, fully extend their limbs, or turn around without touching the sides of their stalls or other animals.

The National Pork Producers Council argued in briefs filed with the court that the law violates the Commerce Clause by regulating businesses beyond its borders.

NAVIGABLE WATERS AND WETLANDS

Idaho property owners Michael and Chantell Sackett petitioned the Supreme Court to consider whether wetlands with a continuous surface-water connection should be considered navigable waters subject to federal jurisdiction or do EPA and the U.S. Army Corps of Engineers only need to prove a so-called "significant nexus" to connect wetlands to navigable waters.

The Biden administration asked the court to deny the request because it currently is working on a rewrite of the waters of the U.S. rule and intends to return to the significant nexus test in making jurisdiction determinations.

For decades farmers and ranchers have been left to figure out on their own which waters on their land may fall under federal jurisdiction.

The Sacketts' battle on an EPA wetland determination started when they bought a small parcel of land in 2005 with the intent to build a home in Priest Lake, Idaho.

They obtained a county permit to build, but EPA claimed the property contained wetlands and ordered the couple to return the land to what EPA said was its original state or pay penalties -- all without the ability to challenge EPA's wetland ruling.

The Sacketts had asked the court to reconsider a ruling it issued in 2006 in Rapanos v. United States. In Rapanos, the Supreme Court held the Clean Water Act does not regulate all wetlands. However, the court offered no opinion explaining why.

A plurality opinion authored by the late Justice Antonin Scalia and joined by three other justices argued only wetlands with a continuous surface-water connection to regulated waters, can be regulated.

A concurring opinion by Justice Anthony Kennedy, however, allowed for regulation of wetlands regardless of any surface connection so long as wetlands bear a so-called "significant nexus" with traditional navigable waters.

ROUNDUP SETTLEMENT

In addition, Bayer AG filed a petition on a multi-million-dollar Roundup settlement case.

So far, the case has not been distributed for a Supreme Court conference. On Dec. 13 the court invited the U.S. solicitor general to file a brief in the case, asking for more information. So far, such a brief has not been filed.

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

Follow him on Twitter @DTNeeley

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