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Corn Growers, Others Seek Rehearing on Fuel Blend Standard

August 20, 2021 by Dan McCue
A corn field in Iowa. (Wikimedia Commons)

WASHINGTON — The National Corn Growers Association, Renewable Fuels Association, and Growth Energy asked the D.C. Circuit Court of Appeals to reconsider its decision to disallow year-round sales of a 15% ethanol fuel blend.

In a petition filed with the court on Thursday, the plaintiffs asked the full court to rehear the case, claiming the three-judge panel that handed down the court’s original decision on July 2 made significant legal errors.

“If allowed to stand, this court’s decision to vacate EPA’s rulemaking to allow E15 to be sold year-round will have devastating consequences for the market expansion of homegrown biofuels,” the plaintiffs said in a joint statement.

“Petitioning for a rehearing is a critical next step in giving biofuel producers and farmers a fair shot in the marketplace and providing American drivers with better access to cleaner fuel choices. We are hopeful that the full court takes up the petition and reverses the panel’s decision,” they said.

The underlying lawsuit stems from a June 2019 decision by the Environmental Protection Agency to extend a mechanism called the Reid Vapor Pressure volatility waiver to E15 fuel.

The measure of vapor pressure relates to the speed at which liquid fuel evaporates.

Since the late 1980s, the EPA has regulated the “vapor pressure” of gasoline sold at retail stations during the summer ozone season — running roughly from June 1 to Sept. 15 — to reduce evaporative emissions that are harmful to the ozone.

In June 2019, the Trump Administration’s EPA revised its interpretation of a provision of the Clean Air Act that grants a 1.0 psi summertime waiver of Reid vapor pressure requirements. 

In doing so, it found that E15 is substantially similar to E10 certification fuel, making biofuel blends like E15 available to motorists year-round.  

The plaintiffs claim oil refiners challenged the rulemaking in the D.C. Circuit to undermine the expansion of biofuels in our nation’s fuel supply.

On July 2, in a ruling that was widely applauded by the oil and gas industry, the D.C. Circuit upheld the 2019 rule, the unanimous three-judge panel holding the phrase “contains 10%” in the relevant statutory text did not extend the 1.0 psi RVP waiver from E10 to E15.

“We are glad the court unanimously found that EPA lacks the authority to grant an RVP waiver to fuel containing more than 10% ethanol, consistent with how EPA interpreted its authority for nearly 30 years prior,” said Chet Thompson, president and CEO of the American Fuel and Petrochemical Manufacturers.

The group is a party to the original lawsuit.

“There is no ambiguity in the statute and the previous administration’s reinterpretation overstepped the will of Congress,” he said.

On Friday, an AFPM spokesperson told The Well News, “EPA doesn’t have any different authority today than it did last month when the court ruled unanimously that the agency overstepped its bounds, and decades of precedent, by applying a Clean Air Act waiver to E15 We’re confident another review of this matter will yield the same result.”

Paul G. Afonso, senior vice president and chief legal officer of the American Petroleum Institute, also commented Friday, saying, “We appreciate the court’s recognition that EPA was clearly outside of its current statutory authority by extending the RVP waiver to E15 fuel.”

The case is American Fuel & Petrochemical Manufacturers, et al. vs. EPA.

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