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Biofuel, farm groups ask for a second look at ban on summertime E15

The market for corn ethanol will be stunted unreasonably if sales of gasoline containing a higher blend of the homegrown fuel are banned during the summer, said corn growers and two biofuel groups on Tuesday. They asked all 16 judges on the U.S. Court of Appeals for the District of Columbia to review a July 2 decision against year-round sales of E15, gasoline containing 15% ethanol.

E15 holds only a sliver of the U.S. fuel market, perhaps 520 million gallons a year, but proponents say it is a lever to expand ethanol’s share of the gasoline market, which could total 135 billion gallons this year. The traditional ethanol-to-gasoline mixture is 10%.

Three judges from the D.C. Circuit ruled unanimously last month that the EPA, acting at the direction of President Trump, had exceeded its authority in approving year-round sales of E15 in June 2019. Until then, sales were banned during the summer in most of the country as a precaution against smog.

If the ruling stands, “it will have devastating consequences for the market expansion of homegrown biofuels,” said two trade groups, Growth Energy and the Renewable Fuels Association, and the National Corn Growers Association in a statement. “We are hopeful the whole court takes up the petition and reverses the panel’s decision.”

The D.C. Circuit rarely grants the type of review requested in the E15 case, known as a hearing en banc — which means a hearing before all its members. A 2017 article in the Yale Journal on Regulation said the D.C. Circuit’s internal procedures stated that “petitions for rehearing en banc are frequently filed but rarely granted.” The exceptions would be cases posing “questions of exceptional interest” or to maintain uniformity in its decisions.

In the Fourth Circuit, based in Richmond, Virginia, rehearings en banc are granted “in approximately 0.3% of the cases in which it is requested,” according to the court’s website.

Federal appellate court rules require that a petition for rehearing en banc state that a panel decision conflicts with Supreme Court or appellate court precedents or that it involves a question of exceptional importance.

The petition for rehearing in the E15 case raised both points. The D.C. Circuit, the groups said, allowed leeway in other cases on regulatory interpretation of numerical limits — in this instance, a pollution waiver for fuel containing 10% ethanol was deemed by the EPA to apply to E15. And, they said, the case was “exceptionally important” for its impact on the environment and the rural economy.

“In sum, the panel’s cramped reading of the word ‘containing’ not only thwarts Congress’s evident purposes and ignores key elements of the statutory context, but also will worsen air quality, increase greenhouse-gas emissions, damage U.S. energy security, hinder rural economic growth, and harm consumers, with no offsetting benefit,” said the petition.

In its ruling, the three-judge panel said the EPA had acted against the plain text of the statute allowing air quality waivers for fuel containing 10% ethanol. The agency interpreted the language to mean “containing at least” 10%, which it said included the 15% blend as well.

The petition for rehearing is available here.

Produced with FERN, non-profit reporting on food, agriculture, and environmental health.
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