ACE conference: An update on litigation affecting the industry

By Matt Thompson | August 16, 2019

Bryan Stockton gave attendees of the American Coalition for Ethanol’s annual conference in Omaha, Nebraska, an update on some of the litigation affecting the ethanol industry.

Stockton is an attorney at Pillsbury Winthrop Shaw Pittman LLP is working on behalf of the industry to protect the Renewable Fuel Standard and spoke to litigation related U.S. EPA’s granting of small refinery exemptions (SREs) as well as its E15 rulemaking.

Stockton said that documents obtained under the Freedom of Information Act suggest that “for some of its [SRE] decisions, EPA might be ignoring common sense, or the spirit of the statute in terms of what’s disproportionate economic hardship,” Stockton said.

He also spoke about legal action that attempts to address EPA’s granting of SREs after renewable blending obligations are established. “In the last year or so EPA’s granting these exemptions after the RVO’s been finalized,” Stockton said, meaning the expansions aren’t being considered when blending oblations are set, which is required by statute. He added that industry groups filed a petition asking EPA to reconsider and amend its regulations to account for SREs prior to blending obligations being established. “We recently filed a motion to lift that stay and continue litigation,” Stockton said. He added that groups like the Sierra Club have also filed motions challenging the 2018 RVOs, saying they’re too high.

Stockton said the ideal outcome of the litigation is to change regulations to require EPA to account for the volume of blended fuels lost to SREs. “This petition is saying at least, that you can’t keep your head in the sand. Let’s change the regulations,” he said, adding, “The regulations would ensure that the blending obligations are actually being met,” Stockton said.

He also addressed EPAs extension of the RVP (Reid vapor pressure) waiver to E15. “It’s certainly a big step forward, but it’s not completely over yet,” he said, adding there have been several groups that have filed petitions to challenge the rule, including petroleum industry groups. He also mentioned a petition filed by Urban Air Initiative and other petitioners challenging the rule’s treatment of blender pumps and blends higher than E15. He said there is pressure on EPA to make the rulemaking stronger.