RFA signals intent to fight court’s decision on EPA’s E15 rule

By Erin Voegele | July 21, 2021

The Renewable Fuels Association sent a letter to the U.S. EPA on July 15 urging the agency to exercise its enforcement discretion to continue allowing sales of E15 during the remainder of the 2021 summer driving season and announcing its intent to fight a recent court decision vacating the EPA’s 2019 rule allowing year-round E15 sales.

The letter, addressed to Lawrence Starfield, acting assistant administrator in the EPA’s Office of Enforcement and Compliance Assurance, provides an overview of efforts to secure year-round E15 sales, including a rule finalized by the EPA in 2019 that extended the 1-psi Reid vapor pressure (RVP) waiver to E15, allowing the fuel to be sold in most markets year-round. Prior to that rule, the RVP waiver was extended only to E10 blends.

 The EPA’s 2019 E15 rule was challenged by oil interests. On July 2, 2021, the U.S. Court of Appeals for the D.C. Circuit vacated the EPA’s E15 rule, “finding that EPA’s interpretation of the statutory gasoline RVP restrictions and allowances exceeded its authority under the Clean Air Act,” according to the RFA in its letter. “The court ordered that issuance of its mandate, and therefore if official vacatur of the E15 rule, would be delayed until seven days after the disposition of any timely petition for rehearing or petition for rehearing en banc.”

In the letter, the RFA, which intervened ion behalf of EPA in the proceeding before the D.C. Circuit, announces its intent to file a petition for rehearing by Aug. 16. The group said it may also seek U.S. Supreme Court review. Co-intervenor Growth Energy may also do the same, according to the letter.

“Immediate vacatur of the E15 Rule would cause potentially drastic consequences for U.S. biofuels producers and the gasoline market as a whole,” said the RFA in the letter. “If E15 sales were required to cease immediately upon issuance of the D.C. Circuit’s mandate, summertime E15 sales would fall precipitously. Certain oil companies already are advising their downstream blenders to cease blending E15. Termination of E15 sales will result in significant financial losses for retailers who had planned to blend E15 throughout the volatility control season, higher prices for U.S. gasoline consumers, and elimination of the environmental benefits that come with higher ethanol blends.

“Enforcement discretion under these circumstances would be consistent with the Agency’s practice of letting the time for all appeals run prior to implementing a decision that could ultimately be overturned,” the RFA continued. “For instance, EPA recently delayed implementation of the Tenth Circuit’s January 2020 decision restricting EPA’s authority to grant small refinery exemptions under the Renewable Fuel Standard program until after all appeals—including requests for rehearing and Supreme Court review—were exhausted. Here, the parties to the D.C. Circuit proceeding will have 90 days from the date of the D.C. Circuit’s decision on any petitions for rehearing to file a petition for a writ of certiorari with the United States Supreme Court. It would be reasonable for EPA to refrain from enforcing vacatur of the E15 Rule until the time for filing such a petition has run, and if a petition is filed, until resolution of the Supreme Court proceedings.”

In the meantime, the RFA is urging the EPA to work toward development of an alternative solution to allowing year-round E15 sales.