Court denies request to rehear case vacating EPA’s E15 rule

By Erin Voegele | September 09, 2021

The U.S. Court of Appeals for the D.C. Circuit on Sept. 9 denied a petition for rehearing filed by Growth Energy, Renewable Fuels Association, and National Corn Growers Association challenging a ruling handed down by the court in July that vacated a 2019 rule issued by the U.S. 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, RFA and NCGA filed a 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.

“Our petition for rehearing was an opportunity for the D.C. Circuit to remedy a decision that runs counter to legal precedent and which, if maintained, threatens our nation’s rural economy and progress on moving toward a clean energy future,” said the RFA, Growth Energy and NCGA in a statement.

“Today’s petition denial is another hurdle to ensuring year-round access to low-carbon E15, however, due to timing, American drivers and retailers will be able to finish out the E15 summer driving season without disruption to their access to cleaner fuel choices at the pump,” the three groups added. “Moving forward, we continue to push for a permanent remedy long before the start of next year’s summer driving season.”

The American Coalition for Ethanol also issued a statement vowing to work to ensure continued summer availability of E15. “ACE is disappointed the D.C. Circuit Court refused to reconsider its decision even though EPA’s interpretation of the Clean Air Act to permit E15 the same gasoline volatility treatment as E10 is consistent with Congressional intent and reflects the realities of today’s motor fuel market,” said Brian Jennings, CEO of ACE. “As we’re just days away from the end of the summer driving season, this ruling should not impact 2021 summer sales of E15, and ACE is helping pursue multiple avenues to ensure E15 sales will not be disrupted next year.

“While this is a setback, ACE will do everything it can to ensure uninterrupted market access for E15 so we can eventually move billions of gallons of low carbon ethanol through the marketplace.”