Court rejects challenge to EPA E15 regulation

By Erin Voegele | October 23, 2014

On Oct. 21, the U.S. Court of Appeals for the District of Columbia denied a petition of review filed by the American Petroleum Institute and other groups challenging the E15 misfueling mitigation rule published by the U.S. EPA in June 2011. In its judgment, the court said the petitioners do not have standing because “they cannot show that their members have suffered or are threatened with suffering an injury in fact that is traceable to the regulation and redressable by a favorable decision.”

The judgment goes on to explain that API has argued that is standing is self-evident because its members are the object of the regulation, “which directly imposes regulatory restrictions, costs and liabilities on persons or firms that sell E15.” However, the court indicated that the EPI has provided no evidence that any of its members sell or plan to sell E15. “In fact, petitioners’ counsel conceded that API recently polled its members as to whether any member currently sells E15 and no API member responded affirmatively,” wrote the court in its decision. “Nor has API shown that its members are contemplating entering into the market and that their decision depends on the validity of the challenged regulation. API has therefore failed to show exposure to a risk of injury adequate for standing.”

The Engine Products Group is among the petitioners listed in the filing. According to court filings, EPG argued that E15 would damage products sold by its members for which E10 is suitable but E15 is not. “Like API, EPG has filed to offer evidence connecting sales of E15 under the regulation to injuries that EPG members are sufficiently likely to suffer so as to afford it standing,” wrote the court.

Court documents explain that EPG also challenged EPA’s denial of its petition asking EPA to mandate the continued sale of gasoline with 10 percent or less ethanol in order to ensure customers of EPG member associations do not misfuel the members’ products with gasoline that contains between 10 percent and 15 percent ethanol. In its judgment, the court said “EPG provides no evidence that E15 has displaced or is likely to displace E10 in such a way as to drive consumers to use E15 for want of adequate E10 supplies.”

Growth Energy originally filed the E15 waiver with the EPA in March 2009. The EPA granted a partial approval of that waiver in October 2010 that covered the use of E15 in model year 2007 and newer vehicles.  In January 2011, the waiver was expanded to cover model year 2001 through 2006 vehicles as well.  In June 2011, the EPA published a final regulation to mitigate the misfueling of vehicles and engines with gasoline containing greater than 10 percent ethanol. 

The petition for review was filed in September 2011. An oral argument on the matter was held before Judges Tatel, Brown and Williams earlier this month. A recording of that Oct. 6 hearing can be downloaded on the court’s website here, under Case No. 11-1334: Alliance of Auto Manufacturer v. EPA.

Growth Energy has spoken out to comment on the court’s decision. “Today is another victory for ethanol and the American motorist,” said Tom Buis, CEO of Growth Energy. “To continue to achieve the success of the renewable fuel standard, Growth Energy led the fight for E15 which is now being sold by over 90 retailers in 14 states. This decision is important because it continues to uphold the choice and savings for the American motorist with E15.”