The Biden administration is duplicating last year’s effort to use Clean Air Act emergency waiver authority that will allow consumers to purchase E15 throughout the upcoming summer driving season.

EPA’s decision comes just days before a looming deadline for refiners; the summer driving season and an existing prohibition on E15 sales at gas pumps both begin June 1, but fuel companies are unable to sell E15 from terminals beginning May 1. The action mirrors an emergency waiver issued last year as the Biden administration sought to address consumer impacts of inflation and the impacts of the invasion in Ukraine on global fuel prices.

“The Biden-Harris Administration is committed to protecting Americans from fuel supply challenges resulting from the ongoing war in Ukraine by ensuring consumers have more choices at the pump,” EPA Administrator Michael Regan said in a statement. “Allowing E15 sales during the summer driving season will not only help increase fuel supply, but support American farmers, strengthen U.S. energy security, and provide relief to drivers across the country.”

An EPA release said Regan “determined that extreme and unusual fuel supply circumstances exist and has granted a temporary waiver to help ensure that an adequate supply of gasoline is available.”

The upcoming summer became a more pressing focus at the beginning of March, when EPA moved forward with the approval of a petition to allow eight Midwestern states to sell E15 during the summer, but postponed that approval until the summer of 2024. In its March proposal, the agency said  implementing the waiver this summer would result in an “insufficient supply” of fuel, a decision that angered the governors and the biofuels industry in large part due to the administration’s lengthy delay in approving the petition. The comment period on that proposal closed last week.

But now, with the emergency waiver authority in hand for this summer, biofuel groups are breathing a sigh of relief.

Renewable Fuels Association President and CEO Geoff Cooper said RFA was grateful to see EPA act “to combat potential fuel shortages and higher gas prices this summer.”

“U.S. gasoline inventories are even tighter than they were a year ago, and Putin’s war on Ukraine continues to wreak havoc on global fuel supplies,” he said. “EPA’s action allowing summertime E15 will help extend gasoline supplies, prevent fuel shortages, protect air quality and reduce carbon emissions.”

Growth Energy CEO Emily Skor called the news “a win for drivers across the nation, who can rest easier knowing that they’ll have access to savings” from E15, citing a 16-cent-per-gallon average price difference recorded last summer.

The waiver is necessary due to a Clean Air Act provision that allows a fuel volatility waiver to be issued for gasoline with a 10% ethanol blend. A Trump administration action to extend the waiver to E15 sales allowed the fuel to be purchased for several years before a 2021 federal court decision struck down the regulation and restored the summertime E15 prohibition.

Securing summertime sales of E15 has been a top priority for the biofuels industry lobby ever since, and the American Petroleum Institute has also come to the effort’s aid in recent months. API, worried about the approval of the governor’s petition creating a “boutique fuel market” for E15 in the Midwest, has backed legislation championed by ethanol supporters that would instead amend the Clean Air Act to make the change nationwide.

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Minnesota Republican Brad Finstad, who pushed for action on the governors’ petition earlier this year, said he was happy to see the administration make the change.

“While the Biden Administration should have issued a waiver for the summer sale of E15 weeks ago, I am glad that our biofuel producers, fuel retailers, and consumers now have some certainty going into the summer travel season,” he said.

But EPA’s decision to exercise emergency authority for 2023 sales is likely to be met with opposition by refinery groups, including some who may opt to take legal action. The 2022 waiver was not challenged in the courts, but another waiver with the same rationale as justification could shorten the amount of time needed for energy sector lawyers to draft briefs and arguments due to their familiarity with the issue.

“The U.S. market is well supplied with gasoline, which (Energy Information Administration) data make clear,” American Fuel and Petrochemical Manufacturers President and CEO Chet Thompson said in a statement. “Therefore, we’re anxious to see how EPA is going to justify this decision in light of the statutory limitations and the Agency’s own understanding of emergency criteria, which require a finding of inadequate domestic supply in a specific geographic area.” 

The waiver will officially begin Monday. Under the law, a waiver can only last 20 days but can be extended. EPA said it “expects to issue new waivers effectively extending the emergency fuel waiver until such time as the extreme and unusual fuel supply circumstances due to the war in Ukraine are no longer present.”

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