Supreme Court extends deadline in challenge to E15 ruling

By Erin Voegele | November 15, 2021

The U.S. Supreme Court on Nov. 9 approved a motion delaying the deadline for the government to respond to a petition filed by Growth Energy on Oct. 4 seeking review of a lower court’s decision to vacate a rule allowing year-round sales of E15.

Growth Energy on Oct. 4 filed a writ of certiorari asking the Supreme Court to review a July 2 decision handed down by the U.S. Court of Appeals for the D.C. Circuit 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, 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. 

Nearly a dozen groups, led by the Urban Air Initiative, filed a brief with the Supreme Court on Oct. 25 in support of Growth Energy's petition.

The government’s response to Growth Energy’s Oct. 4 petition was originally due Nov. 8. On Nov. 8, Solicitor General Elizabeth Prelogar filed a motion with the court seeking a one-month extension of that deadline. “This extension is requested to complete preparation of the government’s response, which was delayed because of the heavy press of earlier assigned cases to the attorneys handling this matter,” Prelogar wrote in the motion.

The Supreme Court on Nov. 9 approved the extension. The government’s response to Growth Energy’s petition must now be filed by Dec. 8.

Additional information is available on the Supreme Court website