UPDATE: D.C. Circuit Continues to Adjudicate E15 Case, Hurting Domestic Industries and Consumers

By: Tyler Brewer, Staff Member

My post last October concerned how the D.C. Circuit refused to adjudicate a suit where the EPA illegally authorized E15 (15% ethanol, 85% gasoline) into our domestic fuel supply (click for link).[1] The decision by the D.C. Circuit to dismiss the case for lack of standing led Petitioners to appeal. Unfortunately, on January 15, 2013, the D.C. Circuit in Grocery Mfrs. Ass'n v. EPA denied petitions for a rehearing en banc.[2]

In his dissenting opinion, Judge Kavanaugh reiterated the fundamental flaws in denying the rehearing. Particularly, he discusses how the holding handed down last August "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."[3] Judge Kavanaugh frames the decision as outcome-determinative because the "EPA will lose if [the case] reach[es] the merits."[4] This argument is quite persuasive when considering the E15 partial waivers' effects on the national economy, both at the industrial and consumer levels.[5]

The D.C. Circuit's denial for rehearing sparked initiative in U.S. Senators Roger Wicker (R-Miss.) and David Vitter (R-La.) to repeal the E15 partial waivers via legislation.[6] Yet, the most promising path to reign in the EPA's exercise of power is the Supreme Court. The Petitioners in Grocery Mfrs. Ass'n have until April 15, 2013 (ninety days from being denied a rehearing) to seek the Supreme Court's review.[7] According to one of the Petitioners, there is anticipation for at least one of the groups affiliated with the suit to file by April 15.[8]

Until the E15 is repealed through legislation or struck down by the courts, we are at the mercy of the EPA and the ramifications E15 will have on our economy. While this may seem like an over-exaggerated statement, merely consider one of the many effects E15 imposes; many automotive manufacturers will void your vehicle's warranty if E15 is used.[9]

[1] Tyler Brewer, EPA Approved E15 Gasoline Does More Harm Than Good, Ky. J. Eq. Ag. & Nat'l Res. L. (Oct. 16, 2012, 8:50 PM), http://www.kjeanrl.com/2012/10/epa-approved-e15-gasoline-does-more.html.
[2] Grocery Mfrs. Ass'n v. EPA, No. 10-1380, 2013 WL 163744, at *1 (D.C. Cir. 2013).
[3] Id. at *3 (Kavanaugh, J., dissenting) (footnote omitted).
[4] Id. at *3 (Kavanaugh, J., dissenting).
[5] See Brewer, supra note 1.
[6] Wicker, Vitter to Introduce Bill to Roll Back Ethanol Requirement for Gasolinewww.wicker.senate.gov (Feb. 14, 2013), http://www.wicker.senate.gov/public/index.cfm?FuseAction=NewsRoom.PressReleases&ContentRecord_id=daf97f2b-c16c-053c-f435-581ca633c2fb.
[7] Reagan Haynes, Push to Stop E15 Could Head to Supreme CourtTrade Only Today (February 11, 2013), http://www.tradeonlytoday.com/home/523811-push-to-stop-e15-could-head-to-supreme-court.
[8] Id.
[9] Gary Strauss, AAA Warns E15 Could Cause Car DamageUSA Today (Nov. 30, 2012, 11:40 AM), http://www.usatoday.com/story/news/nation/2012/11/30/aaa-e15-gas-harm-cars/1735793/.

EPA Approved E15 Gasoline Does More Harm Than Good

By: Tyler Brewer, Staff Member 

This past August, the D.C. Circuit for the United States Court of Appeals refused to adjudicate a suit implicating the E.P.A. in yet another exercise of power beyond what is legally granted.[1]  Specifically, a suit arguing the illegality of the E.P.A’s waiver to introduce a 15% ethanol blend (E15) in gasoline was dismissed for lack of standing.[2]

Generally, ethanol is an alcohol-based fuel derived from starch-and-sugar-based feedstocks (primarily corn grain and sugar cane).[3]  Today, more than 95% of U.S. gasoline contains ethanol, and more significantly, blending ethanol in gasoline is required by the federally enacted Renewable Fuel Standard (RFS).[4]  Currently, a blend of 10% ethanol and 90% unleaded gasoline (E10) is sold nationwide, and has been approved by all auto manufacturers for use in their gasoline engines.[5] However, introducing E15 into commerce has significant ramifications in various industries, particularly auto-manufacturing and petroleum.[6]

Studies have shown E15 fuel use in post-2001 engines causes “substantial damage” due to the increased ethanol blend corroding many of the engine and fuel system components.[7] The EPA’s “fix” to this problem is a small black and orange sticker (less than four-squared inches) designed to warn consumers.[8] Yet, in order for the EPA to issue the E15 waiver, the EPA “had to find that E15 would not cause any car models made after 1974 to fail to meet emissions standards.”[9]

In the petroleum industry, underground storage tanks at service stations are not certified to hold an ethanol blend higher than 10%.[10] In order to provide E15 to consumers, the new E15 waiver requires station owners to spend tens of thousands of dollars to replace each station with E15 suitable tanks.[11]

The D.C. Circuit failed consumers and businesses by not adjudicating this matter; especially after reading the very compelling dissent discussing how all plaintiffs possessed standing to raise their complaint.[12] Without adjudication over the EPA’s exercise in granting this “partial” waiver, everyone is at the EPA’s mercy.

[1] See generally, Grocery Mfrs. Ass’n v. E.P.A., No. 10-1380, 2012 WL 3538217 (D.C. Cir. Aug. 17, 2012).
[2] Id. at *9.
[3] Ethanol Fuel Basics, Alternative Fuels Data Center, http://www.afdc.energy.gov/fuels/ethanol_fuel_basics.html (last updated Oct. 9, 2012).
[4] Id.
[5] Ethanol, Fueleconomy.gov, http://www.fueleconomy.gov/feg/ethanol.shtml (last updated Oct. 5, 2012).
[6] See generally Grocery Mfrs. Ass’n, 2012 WL 3538217, at *4-9.
[7] John O’Dell, Controversial E15 Fuel Blend Is on the Way, Edmonds.com (May 29, 2012), http://www.edmunds.com/fuel-economy/controversial-e15-fuel-blend-is-on-the-way.html.
[8] Id.
[9] See Grocery Mfrs. Ass’n, 2012 WL 3538217, at *9 (Kavanaugh, J., dissenting).
[10] Ryan Tracy, Standoff at Pump over New Fuel: Ethanol Lobby vs. Station Owners, Wall St. J. (Oct. 3, 2012),  http://online.wsj.com/article/SB10000872396390444549204578020403867106388.html?mod=googlenews_wsj.
[11] Id.
[12] See Grocery Mfrs. Ass’n, 2012 WL 3538217, at *9-20 (Kavanaugh, J., dissenting).