A federal appeals court had biofuels under the microscope Tuesday as it considered arguments to overturn a move to allow year-round sales of E15.
The U.S. Court of Appeals for the D.C. Circuit heard a challenge to the EPA’s E15 decision brought by the American Fuel and Petrochemical Manufacturers, which argued EPA should not have allowed for the sale of E15 — a fuel mixed with roughly 85% gasoline and 15% ethanol — during the summer months. That decision was made in May 2019 following years of ethanol industry lobbying and negotiations with the Trump administration over biofuels policy.
The action was technically a Reid Vapor Pressure waiver to excuse certain emissions requirements brought on by the fuel, something AFPM and other industry stakeholders argued was illegal based on a faulty interpretation of the legal statute.
Much of Tuesday’s dialogue between judges and attorneys centered around how EPA should approach statutory language citing 10% ethanol.
“EPA stresses that the statute does not say ‘no more than 10% ethanol,’ and therefore it shouldn’t be read as setting a ceiling. And that’s true as far as it goes,” Kevin King, an attorney arguing for a group of oil industry petitioners said. “But what EPA ignores is that the statute does not say ‘contain at least 10% ethanol.’”
Ethan Shenkman, an attorney for biofuel petitioners — Growth Energy, the Renewable Fuels Association, and the National Corn Growers Association — dismissed that argument, declaring instead that EPA’s action was well within legal language parameters.
EPA’s decision to accept the language as a 10% minimum, he said, “is supported by the ordinary usage of the word ‘contains.’”
Perry Rosen, a Department of Justice attorney arguing for the EPA, argued the “we believe that the 10% just came out of just sort of where things were at the time.” That language, which he said was originally written in 1979, reflected a lack of alternative blends in the marketplace.
In advance of the arguments, the three intervening biofuel groups dismissed the challenges to the waiver.
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“If the refiners had their way and this rule was overturned, both volatile emissions and greenhouse gas emissions would increase,” Growth Energy, RFA, and NCGA said in a statement. “EPA’s E15 rule should be upheld because it is consistent with Congressional intent and the Clean Air Act, good for the environment, good for the rural communities that rely on a strong biofuels industry, and good for American drivers who want more options at the pump.”
A spokesperson for AFPM said a change to the RVP waiver "requires Congress."
"No Administration is empowered to reinterpret the Clean Air Act to mean something Congress expressly rejected. When Congress has wanted to set a floor in statute, it does so explicitly — as it did elsewhere in the Clean Air Act. If there is any doubt over Congress’s intent on this matter, a 1990 Clean Air Act amendment that would have explicitly set an RVP waiver floor of 'at least' 10 percent ethanol was rejected in favor of the statute as written."
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