Petition filed challenging EPA’s limit to higher ethanol blends

By Matt Thompson | August 12, 2019

A group of petitioners, including Urban Air Initiative and National Farmers Union, have filled a legal petition with the U.S. Court of Appeals requesting judicial review of an EPA rulemaking that would limit blends of ethanol higher than 15 percent. The rule, the petitioners say, would also force fuel retailers using blender pumps to comply with the same rules as oil refineries, as it would classify them as fuel manufacturers, and would effectively limit blender pumps to dispensing only E15 and E85.

The rule in question is the same rule that allows for the year-round sale of E15; however, the petitioners note the challenge isn’t with the E15 provision. “The E15 rule is very important to our industry and valuable to our industry and we are in full support of that,” said Dave VanderGriend, president of UAI. “However, EPA is notorious for slipping in little comments here and there that create, I would say, ambiguity around some of the nuances of this rule, and the one that we are the most concerned about is its limiting the ability to grow beyond E15.”

Specifically, petitioners take issue with EPA’s interpretation of the “substantially-similar” – or sub-sim – provision of the Clean Air Act. VanderGriend said that because E10 has been used in fuel in EPA’s vehicle certification process, blends higher than E15 shouldn’t be limited. “We believe, according to the law, you’re allowed to blend more ethanol under the sub-sim rule,” he said. The provisions in the E15 rule, VanderGriend said, would block that ability.

“I’m specifically talking about blends like E20, E25, E30, any of those type of blends is what, in the fine print of this rule, is going to severely limit our industry moving forward,” he said. “There are a number of stations that have installed blender pumps that give consumers choice. What we really would like to see is that level of consumer choice,” VanderGriend said.

VanderGriend also said the move is a proactive one and designed to ensure cleaner fuels are available. “We believe we have taken this as a very strong offensive position, rather than defensive position,” VanderGriend said. “I’m concerned that our industry has always been on the defense trying to protect what we have, rather than going out there and saying, ‘Let’s go after what we need.’ And what we need is free access to the market.” He also said UAI is confident the group’s petition won’t affect the year-round E15 rule.

VanderGriend said that filing the petition is required to ensure the future growth of the ethanol industry. “This is in an important step to take and it’s a valuable step to take, but we don’t have a choice,” he said. “If we don’t take this step, you can’t take it back. You can’t do it later. We’re taking this offensive strategy because this is the only strategy to really force EPA to clarify the rule around blender pumps and higher blends of ethanol. This is the only way we see today to bring this to the surface, to force the dialogue in the discussion with EPA about midlevel blends.” VanderGriend added that petitioners have 60 days to file their concerns after the final rule was released.

In addition to UAI and NFU, petitioners include South Dakota Farmers Union, Famers Union Enterprises, fuel retailers Jackson Express and Jump Start, Clean Fuels Development Coalition, the Nebraska Ethanol Industry Coalition, Big River Resources LLC Fagen, Inc., Glacial Lakes Energy LLC, and Little Sioux Corn Processors.