New High-Ethanol Fuel Challenge Hits the Wall

     (CN) – A high-ethanol gasoline blend is coming to a pump near you after a federal judge shot down challenges from the food, petroleum and auto industries.
     In 2009, Growth Energy, an organization of ethanol producers, asked the Environmental Protection Agency to grant a waiver for E15, a blend of gasoline containing 15 percent ethanol.
     Gasoline in the United Staets is usually blended with 10 percent ethanol, enabling gasoline importers to meet the requirements for renewable fuel sources under the Energy Policy Act of 2005.
     The EPA approved E15 for use in light-duty vehicles made in 2001 or later, but prohibited its use in older cars or trucks amid emissions concerns. It instructed Growth Energy to submit a plan for labeling pumps to prevent consumers from pumping E15 into unapproved cars.
     Three industry groups – the Grocery Manufacturers Association, the Alliance of Automobile Manufacturers, and the American Petroleum Institute – then petitioned the D.C. Circuit to overturn the E15 waiver.
     Dismissing this challenge, the federal appeals court said that the groups could not show harm.
     “To begin with, the engine manufacturers provide almost no support for their assertion that E15 ‘may’ damage the engines they have sold, subjecting them to liability,” Judge David Sentelle wrote for a three-member panel. “They support this assertion, however, with a single reference to internal testing by Mercedes-Benz documenting a 2 percent hit to fuel economy and ‘potential vehicle damage’ from the use of E15 in Mercedes vehicles. This is hardly evidence of a substantial probability that E15 will cause engine harm.”
     The court rejected the American Petroleum Institute’s argument that the introduction of E15 will force importers to bear the costs of introducing a new type of fuel to consumers.
     “EPA’s approval of the introduction of E15 for use in certain vehicles and engines, does not force, require, or even encourage fuel manufacturers or any related entity to introduce the new fuel; it simply permits them to do so by waiving the CAA’s [Clean Air Act] prohibition on introducing a new fuel that is not substantially similar to the fuel used to certify vehicles and engines under their applicable emission standards,” he added. “In short, the only real effect of EPA’s partial waivers is to provide fuel manufacturers the option to introduce a new fuel, E15. To the extent the petroleum group’s members implement that option voluntarily, any injury they incur as a result is a ‘self-inflicted harm’ not fairly traceable to the challenged government conduct.”
     And the Grocery Manufacturers Association failed to support its claims that the approval of E15 will increase the demand of corn, which in turn will increase the price of corn for its members.
     “To demonstrate prudential standing, the food group ‘must show that the interest it seeks to protect is arguably within the zone of interests to be protected or regulated by the statute … in question’ or by any provision ‘integral[ly] relat[ed]’ to it,” Sentelle wrote. “The food petitioners have not made such a showing.”
     The judge noted that the Energy Independence and Security Act (EISA) protects the interests of the Grocery Manufacturers Association, but that a “hypothetical prudential standing to challenge action under EISA does not give the food petitioners prudential standing to petition for review of action taken pursuant to CAA.”

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