EPA Asks Supreme Court Not to Review E15 Case

The ruling on the case overturned a 2019 agency rule lifting summertime restrictions on the sale of E15.

December 13, 2021

Pumping Gas

ALEXANDRIA, Va.—The U.S. Environmental Protection Agency (EPA) asked the Supreme Court to not review a case by the U.S. Court of Appeals for the District of Columbia Circuit. The ruling on the case overturned a 2019 agency rule lifting summertime restrictions on the sale of E15.

On October 4, ethanol industry group Growth Energy filed a writ of certiorari asking the Supreme Court to review a July 2 decision handed down by the U.S. Court of Appeals for the D.C. Circuit that vacated a 2019 rule issued by the U.S. EPA allowing year-round sales of E15.

The Department of Justice filed a brief with the Supreme Court saying that a review of the appellate court decision is not warranted. It said that Growth Energy failed to "establish a sound basis" for review. The brief said that even if the court were to reverse the lower court's ruling, the decision would not lead to widespread use given market barriers.

The market barriers the EPA cited include a lack of developed infrastructure to blend and sell the fuel, logistical and financial challenges that work to limit the expansion of the fuel outside of the Midwest and concerns over the higher blend's compatibility with on-site storage tank systems. It also added that E15 sales did not rapidly expand while the rule was in effect.

"In and of itself, reversing the decision would not allow E15 to be sold more easily during the summer in the areas of the country affected by the E15 rule," it said.

Growth Energy CEO Emily Skor said the group was disappointed with EPA's filing, saying that it will "continue pursuing every avenue to make this happen." Growth will have until Dec. 22, to respond to EPA's filing.

Last week, the EPA proposed a cut on the amount of biofuels U.S. oil refiners were required to blend in 2020. The proposal would retroactively set total renewable fuel volumes at 17.13 billion gallons for 2020—down from a previously finalized rule for the year of 20.09 billion gallons, which was set before the coronavirus pandemic hit. In 2021, fuel refiners and importers would be required to use 18.52 billion gallons of renewable fuel in 2021 and 20.77 billion gallons for 2022. For 2022, as much as 15 billion gallons could be fulfilled from conventional renewable fuels, such as corn-based ethanol, with the remaining 5.77 billion gallons coming from advanced biofuel.

In November, Growth Energy had threatened to sue the EPA over the agency’s delay in releasing RFS volume proposals for 2021 and 2022. The EPA was supposed to issue the 2021 RVO by Nov. 30, 2020, which was an annual deadline set by the RFS, but the agency has yet to release the 2021 RVO.

NACS has supported legislation to provide a one-pound RVP waiver for E15, which would allow for the year-round sale of E15. This issue is one of several barriers for retailers to offer E15 to their customers.