The attorneys general of Iowa and Nebraska on Aug. 7 sued the U.S. EPA over the agency’s failure to respond petitions filed by eight Midwestern governors more than a year ago seeking a solution to year-round E15 sales within their states. 

The petitions, filed in April 2022, aim to ensure year-round availability of E15 in Illinois, Iowa, Minnesota, Missouri, Nebraska, Ohio, South Dakota and Wisconsin. The EPA is required by statute to respond to such petitions within 90 days but has failed to take final action for more than a year. 

The agency on March 1, 2023, issued a proposed rule to allow year-round E15 in the eight states starting in 2024. The public comment period on that proposal closed on April 20. To date, the EPA has not finalized the proposed rulemaking. 

In the lawsuit, the attorneys general of Iowa and Nebraska ask the court to require the EPA to issue a final rule at least six months prior to the start of the 2024 high ozone season. 

“The Biden Administration has dragged its feet long enough,” said Iowa Attorney General Brenna Bird. “Hardworking Iowans deserve a cheaper, cleaner option at the gas pump. But despite the Governors’ request, the EPA has refused to allow Iowans to buy the fuel they want. Well, Iowans are done waiting. We’re taking President Biden and the EPA to court to make E15 available year-round.” 

“The Biden Administration knows that increasing access to E15 will help consumers obtain some relief from the rising cost of gasoline, provide support for our farmers, and strengthen U.S. energy security during a turbulent time,” said Nebraska Attorney General Hilgers. “Earlier this year the administration recognized as much when it issued a temporary waiver. There is no reason that waiver shouldn’t be made permanent.”

The Renewable Fuels Association, Growth Energy and the American Coalition for Ethanol are applauding the Iowa and Nebraska attorneys general for their actions.

 “We thank Attorneys General Brenna Bird and Mike Hilgers for taking action to ensure EPA expeditiously finalizes the regulatory changes sought by the governors,” said Geoff Cooper, president and CEO of the RFA. “As we noted in a letter to EPA last week, the marketplace needs time to coordinate and prepare for implementation of these regulations. We have strongly encouraged EPA to finalize the rule before the end of this summer, and we’re hopeful that the action taken by Iowa and Nebraska today will help break the logjam and cause EPA to complete the process as soon as possible.”

“Last summer, American families found savings ranging from 16 cents to nearly a dollar per gallon by filling up with E15,” said Emily Skor, CEO of Growth Energy. “Studies have also shown that E15 not only saves money at the pump; it delivers immediate benefits in the fight against particulate matter, carbon monoxide, and smog-forming pollutants.

“We commend Attorneys General Bird and Hilgers for their efforts to press EPA to finalize regulations implementing the states’ opt-out of the RVP waiver, a move that would ensure retailers in Iowa, Nebraska, Wisconsin, South Dakota, Illinois, Minnesota, Missouri, and Ohio have the certainty they need to provide this earth-smart, wallet-friendly fuel to drivers year-round.

“EPA needs to act now so that fuel retailers have the regulatory clarity they need to make investments and expand access to E15,” Skor added. “We will continue our work with the states and EPA to ensure that consumers in these states will have year-round access to E15 for next summer. And we will continue our work with policy leaders in Congress to enact at nationwide fix that secures a permanent place at the pump for lower-cost, earth-friendly bioethanol blends.”  

“EPA has been dragging its feet this entire rulemaking process, and we applaud Iowa Attorney General Bird and Nebraska Attorney General Hilgers for taking action to hold EPA accountable,” said Brian Jennings, CEO of ACE. “We join them in imploring EPA finalize the plan developed by several Midwestern states so that E15 will be available next summer.”

E15 has been available for use in many non-flex fuel vehicles for more than a decade. The U.S. EPA first granted a partial waiver allowing E15 to be used in model year (MY) 2007 and newer light-duty vehicles in 2010. The agency expanded that waiver to include MY 2001 and newer vehicles the following year. The fuel blend, however, could not be sold in most markets during the summer driving season, from June 1 through Sept. 15. A June 2019 rulemaking changed that, extending the 9-psi RVP waiver to E15 and allowing the fuel to be sold during the summer driving season. The EPA’s rule was challenged by oil groups and in June 2021 the D.C. Circuit Court of Appeals vacated the portion of the June 2019 related to E15, overturning the ability for fuel retailer sell the fuel blend year-round. 

Although the EPA’s rulemaking allowing nationwide year-round sales of E15 was vacated in mid-2021, the fuel blend has remained available during both the 2022 and 2023 summer driving seasons. President Joe Biden in April 2022 announced that the EPA would issue an emergency waiver allowing E15 to be sold during the summer 2022 driving season in response to high fuel prices caused by Russia’s invasion of Ukraine. A similar waiver was issued by the EPA in April 2023, allowing sales of E15 to continue this summer. Once finalized by the EPA, the pending Midwest E15 rule would allow summertime E15 sales to continue in Illinois, Iowa, Minnesota, Missouri, Nebraska, Ohio, South Dakota and Wisconsin starting next summer.

A full copy of the petition filed by the attorneys general of Iowa and Nebraska is available on the Iowa Department of Justice website.