On Tuesday, the D.C. Circuit Court of Appeals denied by 7-1 a petition for a full-court re-hearing of its decision last summer to dismiss litigation challenging the Environmental Protection Agency’s (EPA) approval of the sale of E15 at retail motor fuel pumps. E15 is a blend of 85 percent gasoline and 15 percent ethanol. The case had been filed by coalitions from food production, including the National Chicken Council, petroleum, and automotive industries.
NCC, along with other food producing organizations and the petroleum and automotive industries, had previously brought suit before the D.C. Circuit challenging EPA’s decision to allow E15 for transportation fuel for use in light-duty cars of model years 2001 or newer. In August 2012, in a 2-1 decision, the court dismissed the case. On September 28, 2012, NCC and the other food petitioners, joined by the American Petroleum Institute, asked the D.C. Circuit as a whole to rehear the case, while the remaining petroleum petitioners and the automotive petitioners sought rehearing separately.
The August 2012 majority decision held that petitioners–livestock and refiners–would not be injured by the sale of E15 and were not within the “zone of interests” protected by the Clean Air Act and thus lacked standing to challenge the agency. In both decisions, Judge Brett Kavanaugh was the sole dissenter, saying that the food and petroleum petitioners “plainly have standing” and “the E15 waiver plainly violates the statutory text.” He therefore concluded that the D.C. Circuit erred in declining to re-hear the case.
This week’s decision seems to make it clear that the court failed to review the petitions on merit. Because there is no substitute for ethanol to meet the ever-increasing production quota established by the Renewable Fuel Standard, EPA’s approval of E15 is a de factor mandate on refiners to increase the blend from E10 to E15–an increase from about 14 billion gallons to 21 billion gallons annually. Since virtually all U.S. ethanol is made from corn, the approval of E15 is certain to increase the demand for and price of corn, imposing a significant cost on livestock producers.
In addition, the Clean Water Act prohibits EPA from approving the sale of any fuel additive that causes or contributes to the failure of emission control systems in any vehicle manufactured after 1974. By EPA’s own admission, E15 can contribute to emission control failures in vehicles manufactured during model years 1975 through 2000. Therefore, it appears obvious that EPA does not have the authority to approve the sale of E15.
With the court’s denial this week for a re-hearing, further review by the D.C. Circuit is not possible. The last remaining option is for the E15 petitioners to seek certiorari review before the Supreme Court. This form of review is discretionary and granted only in rare circumstances, but Judge Kavanaugh’s dissent provides some possible language that could be used to convince the Court to take the case. The petition to the Court would be due 90 days after the denial of the re-hearing or April 15.
