Midwest governors outline plan to resume year-round sales of E15

By Erin Voegele | November 04, 2021

A group of seven Midwestern governors on Nov. 3 sent a letter to U.S. EPA Administrator Michael Regan announcing that they are exploring all options to ensure fuel retailers are able to sell E15 year-round.

The letter expresses disappointment in the July 2 ruling handed down by the D.C. Circuit Court of Appeals that vacated a June 2019 rule issued by the EPA allowing year-round sales of E15.

“Fuel marketers and retailers, renewable fuel producers, the U.S. Department of Agriculture, and state governments have invested hundreds of millions of dollars in recent years to expand consumer access to low-cost, clean-burning fuels like E15,” the governors wrote. “Not only does the recent court decision threaten to strand these public and private investments, but it also jeopardizes the progress we’ve made toward cleaning up our fuel supply and reducing emissions from transportation.

“In the wake of the court decision, we are exploring all of our options to ensure retailers are able to sell E15 to consumers all year long without interruption,” they continued. “It is our understanding that the EPA Administrator has the authority under Section 211(h) of the Clean Air Act to promulgate regulations that would put E10 and E15 on equal footing with regard to volatility limitations, thus re-opening the door to unencumbered, year-round sales of both fuels.

“Specifically, Section 211(h)(5) of the Act establishes that upon the request from the Governor of a State, the Administrator shall apply volatility limitations to gasoline-ethanol blends that exclude the benefit of the 1-pound per square inch (psi) Reid vapor pressure (RVP) waiver provided to E10 in Section 211(h)(4). If approved, it is our understanding that such a request would result in a volatility limitation of 9 psi for both E10 and E15 in conventional gasoline areas, thereby establishing a level playing field and allowing retailers to use the same gasoline blendstock for both blends all year long. We understand that some states have already requested, and secured approval, of such action by the Administrator2 , meaning the recent court decision will not impact the ability of retailers in their states to sell E15 year-round.

“Further, we note that Section 211(h)(5) of the Act requires the Administrator to promulgate regulations enacting such a request from a Governor within 90 days of receiving notification from a Governor. Thus, if we were to submit a request for exclusion from the 1-psi ethanol waiver this summer or fall, it is our understanding that the Administrator could promulgate rules acting on the request well before the 2022 summer high ozone season.”

While the governors have not yet submitted the notification required under Section 211(h)(5)(A), they do express interest in potentially pursuing that approach. “We would like to open a dialogue with the Agency on this issue and we are respectfully requesting your guidance regarding the process for securing an exclusion from the 1-psi ethanol waiver,” they wrote. “Specifically, we seek additional detail from EPA on what ‘supporting documentation’ must be furnished by the Governor of a State to support a request for an exclusion from the waiver, along with any other information that the Agency feels would be helpful as we strongly consider pursuing this option.”

The letter is signed by Iowa Gov. Kim Reynolds, Nebraska Gov. Pete Ricketts, North Dakota Gov. Doug Burgum, Minnesota Gov. Time Walz, Missouri Gov. Michael Parson, South Dakota Gov. Kristi Noem, and Wisconsin Gov. Tony Evers.

The American Coalition for Ethanol is commending the governors for their action. “Given the sense of urgency to ensure uninterrupted availability of E15 year-round in all parts of the country, we are enormously grateful that these Midwest governors are deploying their influence to protect this growing clean fuel market in their states and the investments of fuel marketers, biofuel producers, USDA, and state governments to expand consumer access to a low-cost, clean fuel blend, so it can continue to reduce emissions from transportation,” said Brian Jennings, CEO of ACE.

“Since 2019, E15 adoption at retail sites has rapidly expanded and extending the 1-psi RVP waiver to E15 only makes sense to reflect the realities of today’s motor fuel market and year-over-year track record of successful growth,” Jennings added. “Losing E15 sales next summer would harm everyone through even higher pump prices and greenhouse gas and tailpipe emissions.

“ACE stands by these Governors as they pursue all options to ensure E15, a clean and safe fuel with lower RVP emissions than E10 and straight gasoline, can still be sold next summer, and urges EPA to respond to this request in a timely manner,” Jennings said.

The Renewable Fuels Association is applauding the letter. “We sincerely appreciate the efforts of these governors to protect and expand market opportunities for the region’s farmers and ethanol producers,” said Geoff Cooper, president and CEO of the RFA. “The governors should be applauded for working together to proactively seek solutions at the state level, rather than waiting for Washington to clean up yet another regulatory mess created by the oil industry. Ethanol producers and farmers stand with these governors, and we will leave no stone unturned in our pursuit of an open and competitive marketplace for E15 and other lower-cost, lower-carbon ethanol blends. We encourage EPA to expeditiously respond to the governors and open the dialog needed to remove the outdated and absurd regulatory barrier to summertime sales of E15 in these states.”

The Iowa Renewable Fuels Association is also speaking out in support of the governors’ actions. “We all hope either Congress or EPA will take action to preserve nationwide access to E15 on a year-round basis,” said Director Monte Shaw, executive director of the IRFA. “But if no timely national solution is found, governors have the authority to implement a state-by-state solution. We heartily applaud the Midwest governors for putting oil refiners on notice that their market obstructionism will not stand. The oil refiners may have created this problem, but all 50 governors can fix it. We’re proud that Iowa Governor Kim Reynolds is leading the way for a bipartisan Midwest solution.”