WASHINGTON, Jan. 15, 2013 - The U.S. Court of Appeals for the District of Columbia today refused attempts to rehear an earlier case in which the court struck down challenges to an Environmental Protection Agency decision to allow E15 blended ethanol to be used commercially.

The 8-judge panel voted 6-1 to deny petitions for rehearing Grocery Manufacturers Association v. EPA. One judge did not vote.

The refusal follows the court’s action on Aug. 18 to strike down challenges to the EPA’s decision.

The Grocery Manufacturers Association and the American Petroleum Institute first challenged E15 in November 2010, claiming that allowing the higher concentrations of ethanol in fuel would increase food prices and potentially harm vehicles.

In that case, the court ruled that none of the groups challenging the EPA rules, which included those representing Tyson Foods and Coca-Cola, could adequately establish specific harm from the allowance of E15. 

Growth Energy, a group representing producers and supporters of ethanol released a statement in support of the D.C. court’s decision. 

“This is a major victory for the renewable fuels industry and opens the door for further investment in new fueling technology to offer E15 to consumers,” said Tom Buis, chief executive officer for Growth Energy. “Today’s result is a win-win for American consumers, providing them with both a choice and savings at the pump, and is a critical step in increasing market access. Not only will E15 help reduce our dependence on foreign oil, it will also continue to create jobs here at home and revitalize rural economies, while also improving our environment by increasing the availability and use of a cleaner burning fuel.”

In dissent, Circuit Judge Brett M. Kavanaugh said the court’s decision is “mistaken in multiple independent ways.”

“The panel’s standing holding is problematic not only because of the erroneous standing law that it creates, but also because it is outcome-determinative in a case with significant economic ramifications for the American food and petroleum industries, as well as for American consumers who will ultimately bear some of the costs,” Kavanaugh wrote. “The panel’s standing holding is outcome- determinative because EPA will lose if we reach the merits. The E15 waiver plainly violates the statutory text. The statute does not allow a waiver for a new fuel if the waiver would cause failure of emissions standards in cars manufactured after 1974. The evidence is undisputed that this E15 waiver would cause failure of emissions standards in cars manufactured through 2000.”

Also in opposition to the decision, the American Fuel & Petrochemical Manufacturers (AFPM) said it may appeal to the Supreme Court.

“We remain concerned that EPA’s partial waiver will result in significant misfueling and will harm consumers,” said AFPM general counsel Rich Moskowitz. “EPA has authorized the sale of an ethanol blend that virtually every automobile manufacturer has warned will damage existing vehicles.”

AFPM has argued that EPA overstepped its authority under the Clean Air Act by granting partial waivers to allow the use of E15 in certain engines, including vehicles model year 2001 and newer. 



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