DC Circuit Reinstates Ban on High-Ethanol Gas in Summer

WASHINGTON (CN) — Reinstating a 2011 regulation meant to decrease smog emissions, the D.C. Circuit on Friday found that a Trump-era rule that allowed the use of high-ethanol fuel to be used year-round exceeded the Environmental Protection Agency’s authority.

U.S. Circuit Judge Judith W. Rogers, a Bill Clinton appointee, delivered the opinion for the unanimous court. 

“The defenses of EPA’s new interpretation of... the E15 Rule are unpersuasive,” Rogers said to the EPA’s claim that a Clean Air Act statute requiring fuel sold during summer months to only contain 10% ethanol is ambiguous. 

In 2011, the Obama EPA prohibited the sale of E15 fuel — a blend that consists of 15% corn-based ethanol and 85% gasoline — between May and September in an effort to reduce smog emissions. But in 2019, the Trump administration approved the use of the high ethanol fuel year round, after facing pressure from midwestern farmers.

Big Oil sued, contending that the Clean Air Act’s language is clear. 

During oral arguments in April, EPA counsel Perry Rosen argued that the statute meant that gasoline could contain between 10-49% ethanol. 

The EPA provided examples that juice claiming 10% fruit juice must contain at least 10% fruit juice, and a physician’s diagnosis that a patient's blood must contain 10% white blood cells means the patient's blood must contain at least 10% white blood cells. 

U.S. Circuit Judge Robert Wilkins retorted with his own examples that if he asked the lawyer to file a brief with five pages of argument, it wouldn’t be appropriate for the lawyer to file a brief with 10 pages, and if he claimed an Arnold Palmer had 50% lemonade, but gave the lawyer a teaspoon of ice tea and filled the rest with lemonade, it would no longer be an Arnold Palmer. 

“When you’re dealing with chemicals, and it’s a specific amount — it means that amount and can’t see any ambiguity at all,” said Wilkins, a Barack Obama appointee.

In her opinion, Rogers said that 10% was not ambiguous like the EPA was arguing, nor did Congress intend for it to be ambiguous. 

“Examples from other settings are unlikely to undermine contextual evidence of textual meaning in a complex regulatory regime designed to reduce air pollution where the unmodified term ‘containing’ is used with a percentage,” Rogers said. 

Chet Thompson, president of the American Fuel & Petrochemical Manufacturers, the lead plaintiff in the lawsuit, applauded the ruling.

“We are glad the Court unanimously found that EPA lacks the authority to grant an RVP [Reid vapor pressure] waiver to fuel containing more than 10 percent ethanol, consistent with how EPA interpreted its authority for nearly 30 years prior,” Thompson said in a statement. “There is no ambiguity in the statute and the previous administration’s reinterpretation overstepped the will of Congress.”

Despite Trump’s rule change, the adoption of high-ethanol gasoline has been slow, and has only accounted for about 1% of the fuel sold at retail gas stations in the United States throughout the past decade. 

In a statement after the ruling, the Renewable Fuels Association, Growth Energy and National Corn Growers Association said that studies prove switching from E10 to E15 fuel would significantly reduce both volatile and greenhouse gas emissions. 

"Oil refiners are simply trying to reclaim more market share by blocking American drivers from year-round access to a more affordable, lower-carbon fuel at the pump,” the groups said. “EPA’s E15 rule should be upheld because it is consistent with Congressional intent and the Clean Air Act, good for the environment, good for the rural communities that rely on a strong biofuels industry, and good for American drivers who want more options at the pump.”

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