The U.S. Supreme Court on Jan. 10 denied a petition filed by Growth Energy in October 2021 seeking a review of the U.S. Court of Appeals for the D.C. Circuit’s July 2, 2021, ruling that vacated a portion of a 2019 U.S. EPA rule allowing year-round sales of E15.

“We are certainly disappointed that the Court did not grant our petition to review the D.C. Circuit’s opinion, which vacated EPA’s well-reasoned decision to extend the seasonal RVP waiver to E15, fuel that has a lower RVP than E10,” said Emily Skor, CEO of Growth Energy.

“The Clean Air Act provides ample authority for EPA to pave the way for the expansion of E15 nationwide and year-round and increase access to cleaner fuel for all Americans,” Skor continued. “Growth Energy will continue to explore all potential avenues to make unfettered access to E15 a reality.”   

The EPA rule, issued in June 2019, extended the 1-pound-per-square-inch (psi) Reid vapor pressure (RVP) waiver to E15. The rule found that E15 is substantially similar to E10 certification fuel and allowed for year-round sales of the fuel blend. Prior to the rule, E15 could not be used to fuel non-flex fuel vehicles in summer months.

Days after the EPA finalized the rulemaking, the American Fuel and Petroleum Manufacturers filed a petition for review with the D.C. Circuit Court of Appeals. Oral arguments pertaining to the challenge were held in April 2021 before a panel of three judges.

The court on July 2 issued it opinion, holding that Section II of EPA’s rule exceeds the agency’s authority under Section 7545 of the U.S code, which addresses the regulation of fuels. As a result, the court vacated that portion of the rule. Section II addresses the application of the 1-psi waiver to E15.

Growth Energy, RFA and NCGA filed a petition on Aug. 16 asking the full court to rehear the case, arguing that the decision handed down by the three-judge panel conflicts with precedent set by both the Circuit Court and the U.S. Supreme Court. That petition for rehearing was denied by the U.S. Court of Appeals for the D.C. Circuit on Sept. 9. 

Growth Energy escalated its challenge to the D.C. Circuit Court’s ruling on Oct. 4 by filing a petition asking the U.S. Supreme Court to review the lower court’s decision.

In that petition, Growth Energy argues that the decision did not give proper deference to EPA, contradicted Congressional intent in promoting renewable fuels, and would suppress the expansion of higher-blend renewable fuels in the future. 

The Department of Justice filed its response on Dec. 8, calling on the court to deny the writ of certiorari. The government argued that overturning the D.C. Circuit Court’s ruling would have limited legal and practical consequences and pointed to alternative avenues that can be pursued in order to increased the use of E15, including a the ability of states to petition the EPA through a separate provision of the Clean Air Act to allow year-round sales of E15 in affected areas and the potential for a congressional fix to the issue.  

Following the Supreme Court’s announcement, the Iowa Renewable Fuels Association issued a statement calling for a Midwest solution for year-round E15.

“Coupled with inaction by Congress to pursue a legislative fix, today’s decision by the Supreme Court to not review the E15 decision, while disappointing, underlines the need for states like Iowa to act to ensure E15 can be sold all year,” said Monte Shaw, executive director of the IRFA. “It is now clear that no timely federal solution is coming. Therefore, it is time for a Midwest solution for year-round E15. We appreciated that eight Midwest governors, led by Iowa Governor Kim Reynolds, have already reached out to EPA to inquire about taking action at the state level. IRFA will do all we can to support the governors in taking the next steps to implement a Midwest solution so that consumers continue to have access to cleaner-burning E15 all year.” 

Shaw’s statement references a letter sent to EPA Administrator Michael Regan by a group of Midwest governors in November 2021 announcing that they are exploring all options to ensure fuel retailers within their states are able to continue year-round sales of E15. The letter explains how Section 211(h) of the Clean Air Act may offer a way for individual states to ensure continue year-round E15 sales.

Renewable Fuels Nebraska is also calling for a Midwest solution for year-round E15. "Today's disappointing decision by the Supreme Court to not review the E15 decision, along with inaction by Congress to pursue a legislative fix, underscores the need for states like Nebraska to take action to ensure E15 can be sold all year,” said Dawn Caldwell, executive director of RFN. “It is now apparent that no timely federal solution will occur, so it is time for a Midwest solution for year-round E15. Late last year eight Midwest governors, including Nebraska Governor Pete Ricketts, reached out to EPA to inquire about taking action at the state level. As the governors work to take next steps to bring a Midwest solution so that consumers continue to have access to cleaner-burning E15 all year, RFN will do all we can to support a successful outcome."