EPA Ethanol Rule to Stand

The U.S. Supreme Court declined to review the rule concerning year-round sales of E15.

January 11, 2022

Ethanol Gas Pumps

ALEXANDRIA, Va.—The U.S. Supreme Court has officially denied a petition filed by ethanol industry group Growth Energy that seeks to review a lower court ruling that says the Environmental Protection Agency (EPA) can’t allow summer sales of fuel blends containing more than 15% ethanol, reports Bloomberg Government.

On October 4, 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 Supreme Court’s decision to deny the review ends a legal battle which started in 2019, when the EPA approved the sale of E15 on a year-round basis under the Trump Administration.

In December, the EPA asked the Supreme Court to not review the case. 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."

In November, the EPA proposed a rule change that would extend the deadlines for oil refiners to meet the 2020 and 2021 biofuel blending requirements. Each year under the Clean Air Act, the EPA must calculate and promulgate Renewable Volume Obligations (RVOs) that ensure the program’s requirements are met in the upcoming year. The deadline each year is on Nov. 30.

The EPA previously extended the 2019 compliance deadline for small refineries (from March 31, 2020, to Nov. 30, 2021) and the 2020 compliance deadline (from March 31, 2021, to Jan. 31, 2022) earlier this year. The agency is proposing to further extend these deadlines.

In early 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.