U.S. EPA has asked the Supreme Court to deny a request from multiple industries to review a lower court ruling upholding the agency's approval of E15, fuel blended with 15 percent ethanol.
Three trade groups have petitioned to the high court to take up the U.S. Court of Appeals for the District of Columbia Circuit's August 2012 decision upholding EPA's waiver for E15, which allowed it to enter the market for certain light-duty vehicles.
D.C. Circuit judges held that the three industries -- a grocery group, fuel producers and engine part makers -- lacked standing to challenge EPA's 2009 decision to grant a waiver for E15 under the Clean Air Act. The associations, the court held, failed to prove how the waiver directly injured them (Greenwire, Aug. 17, 2012).
The Grocery Manufacturers Association, Alliance of Automobile Manufacturers, and American Fuel and Petrochemical Manufacturers have each filed petitions to the Supreme Court.
But Solicitor General Donald Verrilli, representing EPA, argued that the groups have failed to highlight any flaws in the D.C. Circuit's reasoning. He also claimed the groups are shifting their arguments.
"To a large extent," Verrilli wrote in court documents Friday, "petitioners ask this court to grant review, and ultimately reverse the judgment of the court of appeals, based on evidence and arguments that were never presented to that court. Further review is not warranted."
The groups have made several attempts to show how they have standing, most of which were dismissed by the majority of the D.C. Circuit panel. The engine part manufacturers, for example, have said they will be harmed because consumers will use E15 fuel in engines that are not designed for it. That will lead to liability and warranty claims, they say.
Petrochemical companies argued that the cost of putting E15 fuel on the market would be substantial, and the food and livestock groups contend that increased ethanol use will increase the cost of corn, which would affect their bottom line.
The industry groups point to a forceful dissent from D.C. Circuit Judge Brett Kavanaugh, a George W. Bush appointee. He held that the groups did in fact have standing and wrote that he would have ruled against EPA on the merits of the case.
Kavanaugh's dissent could make it more likely that the Supreme Court takes the case, although the full D.C. Circuit bench declined to rehear the case en banc. At oral arguments in April 2012, the three-judge panel was skeptical of EPA's interpretation of the Clean Air Act giving it authority to grant waivers for new fuels. The waiver is the first of its kind ever issued by the agency (Greenwire, April 17, 2012).
The justices will consider whether to grant the industry petitions either before the current term ends in June or when they return next fall. It takes the votes of four justices to take up the case.
Click here to read the EPA brief.