Nebraska, Iowa Sue EPA on E15 Request

LINCOLN, Neb. (DTN) -- Attorneys general in Nebraska and Iowa sued the EPA on Monday, asking a federal court in Iowa to force the agency to finalize a rule to allow permanent year-round E15 sales in eight Midwest states.

By law, the EPA had 90 days to finalize a law, and that deadline passed more than one year ago, according to the lawsuit filed in the U.S. District Court for the District of Southern Iowa.

The AGs asked the court to declare that EPA failed to complete what was a "nondiscretionary act," which means the agency had no choice but to grant the requests as long as the states provided all the necessary information.

The Clean Air Act allows governors to notify EPA that they wish to reject the use of the 1-psi waiver for E10 in their states. This would result in the application of the same volatility limitation to both E15 and E10 -- essentially putting E10 and E15 on the same footing in those states beginning in 2024. The eight states include Illinois, Iowa, Minnesota, Missouri, Nebraska, Ohio, South Dakota and Wisconsin.

On March 1, 2023, the Biden administration announced it was granting petitions for eight states seeking a permanent waiver to allow year-round E15 sales.

"EPA's failure has harmed and will harm plaintiffs and the citizens of their states by impairing their air quality, contributing to the detriment of the health and welfare of our residents, environment, economy, and property," the attorneys general said in their lawsuit.

"EPA's failure to timely issue a final rule constitutes a 'failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the administrator' under (the Clean Air Act). EPA's ongoing failure to timely issue a final rule following the governors' notification more than two years ago has harmed and continues to harm plaintiffs by delaying implementation of measures necessary to reduce the availability of what should be lawfully available fuel mixtures, including E15."

Monte Shaw, executive director of the Iowa Renewable Fuels Association, said the states are running out of time to be able to complete the work needed to sell E15 by the summer of 2024.

"After showing incredible patience and giving the agency every chance to act on their own, it seems it may take a court order to get the EPA to finalize the E15 rule," Shaw said in a statement.

In April 2022, the eight Midwest governors exercised their Clean Air Act authority to equalize the summer regulations for E10 and E15.

EPA waited until March 6, 2023, to propose approval of the request.

"Even with the public comment period on the draft rule closed for months and no substantive objections raised to the proposal, the EPA has neither finalized the rule, nor laid out a timeline for action," the IRFA said.

Iowa Republican Gov. Kim Reynolds said in a statement the Biden administration continues to overlook biofuels in favor of electric vehicles.

"The EPA's ongoing failure to act following our E15 notification more than two years ago is nothing more than a thinly veiled disguise of their disdain towards clean, renewable, American-produced ethanol," Reynolds said.

"The EPA disfavors anything that doesn't have the word 'electric' in its name."

Growth Energy CEO Emily Skor said E15 has been good for consumers during recent years of higher gasoline prices.

"EPA needs to act now so that fuel retailers have the regulatory clarity they need to make investments and expand access to E15," Skor said in a statement.

"We will continue our work with the states and EPA to ensure that consumers in these states will have year-round access to E15 for next summer. And we will continue our work with policy leaders in Congress to enact a nationwide fix that secures a permanent place at the pump for lower-cost, earth-friendly bioethanol blends."

Last week, the Renewable Fuels Association sent a letter to the EPA asking the agency to take action.

"As we noted in a letter to EPA last week, the marketplace needs time to coordinate and prepare for implementation of these regulations," RFA President and CEO Geoff Cooper said.

"We have strongly encouraged EPA to finalize the rule before the end of this summer, and we're hopeful that the action taken by Iowa and Nebraska today will help break the logjam and cause EPA to complete the process as soon as possible."

American Coalition for Ethanol CEO Brian Jennings said in a news release, "EPA has been dragging its feet this entire rulemaking process, and we applaud Iowa Attorney General Bird and Nebraska Attorney General Hilgers for taking action to hold EPA accountable. We join them in imploring EPA finalize the plan developed by several Midwestern states so that E15 will be available next summer."

Read more on DTN:

"RFA Presses EPA to Finalize Year-Round E15 in 8 Midwest States," https://www.dtnpf.com/…

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

Follow him on Twitter @DTNeeley

(c) Copyright 2023 DTN, LLC. All rights reserved.