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Ethanol supporters ask Department of Justice to allow fuel blends higher than E15

Published in blog.hemmings.com

Disappointed that a recent Environmental Protection Agency ruling effectively barred ethanol-blended fuels beyond E15, several groups of ethanol advocates have joined together to petition the U.S. Court of Appeals to reverse a portion of that rule and to allow blends of up to E30 and possibly higher to be sold at gas pumps across the country.

When the EPA permitted retailers to sell E15 in 2011, it only allowed sales for three seasons of the year. The ethanol in E15, like E10, pushes the fuel blend’s Reid Vapor Pressure to above the EPA’s recommended limits during the summer. However, while the EPA granted an RVP waiver for E10 decades ago, it didn’t do the same for E15 in 2011.

For the last few years, ethanol advocates lobbied hard to get an E15 RVP waiver and welcomed the EPA’s decision to do so back in May. “(E10 and E15 volatility) parity is essential to the future growth opportunities for ethanol,” the Renewable Fuels Association wrote in 2017. Indeed, the RFA welcomed the EPA’s decision to permit year-round E15 sales earlier this year, as did a number of other groups backing the waiver.

However, in determining whether E15 warranted an RVP waiver, the EPA considered whether E15 and E10 were “substantially similar” fuels and found that E15 stretched the “sub sim” rule, largely due to its incompatibility with vehicles built before the 2001 model year.

“We determined that E15 in these vehicles could lead to increases in emissions that result in vehicles exceeding certified emission standards and issues with materials compatibility as auto manufacturers likely did not use components compatible with ethanol in fuel systems,” the EPA noted in its ruling.

According to spokespeople from the National Farmers Union, the Urban Air Initiative, and as many as nine other groups, the EPA’s use of the sub sim rule negates the possibility of introducing what are commonly known as mid-level blends – E20, E25, E30, and possibly higher, up to the 50 percent bottom limit of E85 – largely because the agency still considers non-ethanol fuel a benchmark for its sub sim rule rather than E10 alone. Under that interpretation of the sub sim rule, ethanol-blended fuels essentially remain capped at E15.

“While we do not necessarily disagree with EPA’s interpretations that would allow for E15 year-round, we believe the statute clearly allows for higher ethanol blends as part of the substantially similar determination based on E10 certification fuel,” Roger Johnson, the president of the National Farmers Union, wrote in a letter to the EPA just prior to the EPA’s rulemaking.

“We believe, according to the law, you’re allowed to blend more ethanol under the sub-sim rule,” Dave VanderGriend, president of the Urban Air Initiative, said more recently. “I’m specifically talking about blends like E20, E25, E30, any of those type of blends is what, in the fine print of this rule, is going to severely limit our industry moving forward.”

As a result, the 11 groups filed the joint petition with the U.S. Court of Appeals in Washington, D.C., asking the court to review the EPA’s implementation of the sub sim rule and to clear the path for midlevel fuels.

To date, the EPA has not cleared any fuel higher than E15 for use in non-flex-fuel vehicles.

The sub sim rule isn’t the only front on which ethanol lobbyists have pushed for midlevel blends. In testimony to the EPA regarding the agency’s SAFE Vehicles rule – which proposes to freeze fuel economy standards for new cars rather than raise those standards throughout the next decade – ethanol advocates pushed for mid-level ethanol-blended fuels as a way of introducing higher octane fuels.

Meanwhile, at least three bills have been introduced in the current Congress to curtail the use of ethanol in blended fuels. Representative Michael Burgess’s Leave Ethanol Volumes at Existing Levels Act (H.R. 104) proposes to decrease the total amount of renewable fuels from 36 billion to 7.5 billion gallons per year. Representative Bill Flores’s Food and Fuel Consumer Protection Act (H.R. 2540) aims to prevent ethanol amounts in fuel from rising above 9.7 percent. And Senator Pat Toomey’s Restore Environmental Sustainability To Our Renewable Energy Act (S. 2298) proposes to cut corn-based ethanol from the Renewable Fuel Standard. All three have been referred to committee.