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Midwest Attorneys General declare intent to sue EPA over delayed E15 rule

On Monday the Iowa and Nebraska Attorneys General notified EPA Administrator Michael Regan of their “intent to sue” the agency over the delayed rulemaking for year-round sales of E15 in eight Midwestern states. 

Despite a Clean Air Act (CAA) requirement to act within 90 days, EPA took over 300 days to issue a proposed rule. Furthermore, the proposal includes a 2024 effective date. 

“The EPA needs to follow the law and make E15 gasoline available year-round,” says Iowa Attorney General Brenna Bird. “With record-high gas prices, consumers deserve relief and flexibility when paying at the pump. The EPA’s failure to respond on time not only deprives hard-working Iowans of a cheaper, cleaner option, it’s also a violation of the Clean Air Act. Iowa led the country in expanding ethanol access, and Iowa will go to court to lead again if the law isn’t being followed.”

E15 is a fuel blend containing 15% ethanol. The fuel blend has been locked out of the fuel market in the summer in roughly two-thirds of the country due to a regulatory discrepancy that treats E15 differently from other ethanol fuel blends. 

Last April Iowa Governor Kim Reynolds, former Nebraska Governor Pete Ricketts, and six other Midwest governors notified EPA of their decision to exercise their CAA authority to adjust the regulation so that E15 could be sold year-round in their states.

EPA's proposed rule approves the decision but delays the effective date until 2024, citing supply concerns. 

“The Midwest governors acted diligently and in a timely fashion to ensure that low-cost E15 would be available to consumers uninterrupted,” says Iowa Renewable Fuels Association Executive Director Monte Shaw. “The EPA’s delay, despite public assurances the rules would be ready for 2023, serves to protect petroleum refiners but not the Midwest consumers. EPA has the tools to make this right. They should do so immediately.”

In their notice to EPA, the Attorneys General call on EPA to issue an emergency waiver for 2023.

“To the extent there are real production, distribution, retail, and other problems as raised by EPA, those are problems of EPA’s own creation...we demand the EPA issue temporary emergency declarations for the 2023 high-ozone season to bridge the gap until the waiver takes place.”

This was a sentiment voiced by industry groups following the proposed rule. 

"We are grateful to EPA Administrator Regan for his steadfast efforts to preserve access to affordable, domestic biofuels, but we’re disappointed that the EPA’s proposal doesn’t provide a fix for 2023 and the coming summer driving season," says Growth Energy CEO Emily Skor. "American drivers have been able to purchase E15 every summer since 2019, and this summer should be no different. EPA can ensure that access continues in 2023, and should take whatever steps are necessary to do so, including through the use of an emergency waiver."

American Coalition for Ethanol CEO Brian Jennings says EPA is "caving to refiner crocodile tears by kicking the can to 2024." 

"This delay means consumers in conventional gasoline areas of the country will be forced to pay more at the pump this year and retailers who want to offer lower cost E15 to their customers will be penalized," he says. 

Federal law requires a notice of “intent to sue” 60 days before a lawsuit can be filed.

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