Iowa, Nebraska signal intent to sue EPA over year-round E15 delay

By Erin Voegele | March 07, 2023

The attorneys general of Iowa and Nebraska on March 6 notified U.S. EPA Administrator Michael Regan of their intent to sue the agency over its illegal delay in issuing regulations to allow year-round sales of E15 within their states.

A group of Midwestern governors in April 2022 petitioned the EPA to remove the 1-psi Reid vapor pressure (RVP) waiver for summer gasoline-ethanol blended fuels, which would effectively allow E15 to be sold year-round within their states.

Under statute, the EPA is required to respond to such a petition within 90 days. A letter send to Regan on March 6 by Iowa Attorney General Brenna Bird and Nebraska Attorney General Mike Hilgers explains that the mandatory non-discretionary deadline for promulgating regulations related to the Midwest E15 petition was July 27, 2022.

The agency, however, failed to respond to the petition for nearly a full year. The EPA on March 1 released a proposed rule in response to the governors’ petition that aims to allow year-round E15 sales in Illinois, Iowa, Minnesota, Missouri, Nebraska, Ohio, South Dakota and Wisconsin starting in 2024. A public comment period on the proposed rule is open through April 20.

The petition submitted by the Midwest governors sought to implement the removal of the 1-psi RVP waiver in time for the 2023 summer driving season. The EPA’s proposed rule, however, includes an effective date of April 28, 2024. That one-year delay was implemented at the request of various stakeholder petitions, according to the agency.

In their letter to Regan, Bird and Hilgers say the EPA’s actions in delayed action in responding to the petition and implementing the requested regulatory changes violates the Clean Air Act and harms air quality. “It also creates uncertainty and confusion in the marketplace, and left unaddressed, will result in increased emissions and higher fuel prices for consumers,” they wrote. “At best, this delay is arbitrary and capricious, at worst it is plainly unlawful.”

The letter urges EPA to either change the effective date of the proposed regulations to April 28, 2023, or issue temporary emergency declarations for the 2023 high-ozone season to bridge the gap until the waiver takes place. Should EPA fail to take either action within 60 days, Bird and Hilgers have signaled their intent to sue the agency.

The Iowa Renewable Fuels Association has spoken out in support of the actions taken by Bird and Hilgers. “We commend Iowa Attorney General Brenna Bird for standing up for Iowa consumers at the pump,” said Monte Shaw, executive director of the IRFA. “After illegally delaying action, the Biden Administration is trying to use the delay to justify putting off year-round E15 until 2024. They claim they must hold the petroleum refiners harmless by giving them more time to comply. Well, who is holding the Midwest consumers and retailers harmless? Iowans should not have to pay at the pump for the tardiness of the EPA. I think a judge will agree. We will support Attorney General Bird in every way we can to get justice for Iowa consumers.”

The Renewable Fuels Association also supports the action. “We thank these attorneys general for holding the administration accountable to its responsibilities under the Clean Air Act,” said Geoff Cooper, president and CEO of the RFA. “The law is clear—EPA should have finalized the Governors’ petition last July and had everything ready to go for this summer. Now, the marketplace finds itself in between a rock and hard place because of the administration’s inaction, and consumers are at risk of losing access to low-cost, lower-carbon E15 in a few short months. We join these AGs in urging EPA to follow through on its statutory obligation to finalize the Governors petition before this summer.”

 A full copy of the letter is available on the IRFA website