Next Obama-Era Déjà Vu May Be Summertime Ban on High-Ethanol Gas

In rare alignment with climate activists, Big Oil wants the D.C. Circuit to reinstate rules that aim to decrease smog emissions — at the expense, farmers say, of America’s corn belt.

(Image by Doug Peters from Pixabay via Courthouse News)

WASHINGTON (CN) — Two years after the Trump administration authorized year-round sales of high-ethanol gasoline, oil interests greased the wheels at the D.C. Circuit on Tuesday to bring back restrictions on the fuel in summer months. 

President Barack Obama had been in power in 2011 when the Environmental Protection Agency 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. With pressure from Midwestern farmers, whose corn feeds the production of ethanol, the Trump administration approved the use of the high-ethanol fuel to be used year-round in May 2019. 

Representing the country’s oil refineries, the group American Fuel & Petrochemical Manufacturers petitioned the D.C. Circuit for review. Along with advocacy groups representing oil, motorcycle and maritime interests, the industry contends that the Clean Air Act’s language is clear: gasoline can only contain up to 10% ethanol.

Their attorney Kevin King told the court Tuesday during oral arguments that, without floor or ceiling requirements, the EPA should use 10% as a target, even if it is not hit precisely. 

“There is room for ambiguity in the statute, but Congress cannot go further than the ambiguity allows,” King said. 

EPA counsel Perry Rosen rankled the court, however, in saying that the statute’s ambiguity could allow anywhere from 10% to 49% ethanol in gasoline. 

“If we wanted a supplemental briefing with five pages of argument, would you deem it appropriate to file a supplemental brief with 10 pages, under the rationale that it contains 5 pages of argument?” U.S. Circuit Judge Robert L. Wilkins asked. 

“Or If I told you that Arnold Palmer is a drink that contains iced tea and 50% lemonade, and then gave you a teaspoon of ice tea and filled the remainder of the glass with lemonade — would you think I was receiving an Arnold Palmer?”

Rosen agreed that he wouldn’t.

“But by the same token,” he told the Obama appointee, “if there were a statue that required for a piece of jewelry to contain 10% gold to be considered gold plated, and it contained 20%, that statute would be interpreted as at least 10%.”

Rosen continued that if a juice label claims that it contains 10% real fruit, that means that it is at least 10% real fruit. 

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

In a statement about the case, the oil industry group accused the EPA of intruding on the will of Congress.

“After nearly 30 years of arguing that Clean Air Act Reid Vapor Pressure waivers apply to gasoline containing ‘at least 9 percent and no more than 10 percent’ ethanol,” a spokesperson for the group said, “EPA is now claiming the exact opposite — that the statue is ‘ambiguous.’”

It’s up to the judges to interpret what Congress intended with the statute. 

“I just wonder what the principles are that we are laying down,” said U.S. Circuit Judge Judith Rogers, a Clinton appointee. “Words either mean something or they don’t.”

High-ethanol gasoline doesn’t make much of a difference with evaporative emissions, but it does increase the pollution emitted from tailpipe emissions — though the EPA claims the pollution is minimal. 

“We are talking about a fuel blend with just 5% additional ethanol that’s been sold for a decade for nearly two-thirds of the year without any significant environmental issues,” Rosen told judges on Tuesday. “It serves the purpose and intent of the statute, which was to provide a special allowance for ethanol to support the agricultural industry and energy security.”

After President Donald Trump gave E15 the 12-month green light, adoption of high-ethanol gasoline has remained slow. Throughout the past decade, E15 accounts for only about 1% of the fuel sold at retail gas stations in the United States.

During Trump’s unsuccessful reelection campaign, the oil group behind Monday’s appeal ran 30-second ads against him in the swing states of Michigan, Pennsylvania, Ohio and Wisconsin throughout July 2019.

On the Democratic campaign trail, meanwhile, Minnesota Senator Amy Klobuchar used the controversy to position herself as the farmer-friendly candidate.

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