Growth Energy urges SCOTUS to review lower court’s E15 ruling

By Erin Voegele | December 21, 2021

Growth Energy is urging the U.S. Supreme Court to review a lower court’s decision that vacated a U.S. EPA rule allowing year-round sales of E15 despite the U.S. Department of Justice’s recommendation that the court let the ruling stand.

Growth Energy on Dec. 21 filed its reply with court regarding the Department of Justice’s Dec. 8 brief that urged the Supreme Court to deny a writ of certiorari filed by Growth Energy on Oct. 4 asking the court to review a July 2 decision handed down by the U.S. Court of Appeals for the D.C. Circuit that vacated a portion of a 2019 rule issued by the EPA allowing year-round sales of E15.

That EPA rule, issued in June 2019, extended the 1-pound-per-square-inch (psi) Reid vapor pressure (RVP) waiver to E15. The rule found that E15 is substantially similar to E10 certification fuel and allowed for year-round sales of the fuel blend. Prior to the rule, E15 could not be used to fuel non-flex fuel vehicles in summer months.

Days after the EPA finalized the rulemaking, the American Fuel and Petroleum Manufacturers filed a petition for review with the D.C. Circuit Court of Appeals. Oral arguments pertaining to the challenge were held in April 2021 before a panel of three judges.

The court on July 2 issued it opinion, holding that Section II of EPA’s rule exceeds the agency’s authority under Section 7545 of the U.S code, which addresses the regulation of fuels. As a result, the court vacated that portion of the rule. Section II addresses the application of the 1-psi waiver to E15.

Growth Energy, the Renewable Fuels Association and National Corn Growers Association filed petition on Aug. 16 asking the full court to rehear the case, arguing that the decision handed down by the three-judge panel conflicts with precedent set by both the Circuit Court and the U.S. Supreme Court. That petition for rehearing was denied by the U.S. Court of Appeals for the D.C. Circuit on Sept. 9. 

Growth Energy escalated its challenge to the D.C. Circuit Court’s ruling on Oct. 4 by filing a petition asking the U.S. Supreme Court to review the lower court’s decision.

In that petition, Growth Energy argues that the decision did not give proper deference to EPA, contradicted Congressional intent in promoting renewable fuels, and would suppress the expansion of higher-blend renewable fuels in the future. 

The Department of Justice filed its response on Dec. 8, calling on the court to deny the writ of certiorari. The government argued that overturning the D.C. Circuit Court’s ruling would have limited legal and practical consequences and pointed to alternative avenues that can be pursued in order to increased the use of E15, including a the ability of states to petition the EPA through a separate provision of the Clean Air Act to allow year-round sales of E15 in affected areas and the potential for a congressional fix to the issue.  

In its Dec. 21 reply, Growth Energy disputes many of the claims made by the Department of Justice, noting that “some of the government’s concerns contradict EPA’s own findings, and the government vastly overstates the significance of the rest.”

“Tellingly, and contrary to the government’s assertion, the number of miles driven on E15 were markedly higher while the Final Rule was in effect— even though that period covered only one complete summer season and fragments of two more, and even though fuel demand was dramatically lower for most of that period because of the Covid pandemic,” Growth Energy wrote in its reply. “And even under the government’s conception of the size of the market, the Final Rule still affects about one quarter of all gallons of gasoline used in the United States.

“Finally, the government speculates about the possibility of vacatur of the Final Rule on an alternative ground on remand, or an alternative regulatory or legislative mechanism to enable E15 to be sold subject to the same RVP limit as E10 year-round. But this Court routinely grants certiorari in the face of such possibilities.”

A full copy of Growth Energy’s reply is available on the Supreme Court website