The D. C. Circuit Court of Appeals has dismissed for lack of standing challenges by three trade associations to a U.S. Environmental Protection Agency (EPA) waiver that allows the sale of gasoline containing 15 percent ethanol (E15) for use in motor vehicles manufactured after 2001. GMA v. EPA, No. 11-1072 (D.C. Cir. 8/17/12).

The Clean Air Act’s (CAA’s) Renewable Fuel Standard (RFS ) provision requires increasing proportions of the nation’s fuel supply to use renewable fuel and is the provision under which sale of the ubiquitous E10 is authorized. Under separate CAA provisions relating to vehicle emissions, before an entity can sell fuels different from those used in certifying the vehicle’s emissions, EPA must grant a waiver after determining that the new fuel will not damage or cause the emissions control aspects of motors in which it is used to function incorrectly. In 2009, an ethanol industry association sought a waiver from EPA to allow the sale of E15, in part because alternative fuel requirements of the RFS cannot be met, as a practical matter, with fuel at the current 10-percent ethanol level. By January 2011, EPA had approved a “partial” E15 waiver for motor vehicles manufactured after 2001.  

An engine manufacturing trade group challenged the waiver, asserting standing on the basis of potential liability if E15 caused damage to engines, or if consumers mis-fueled a pre-2001 vehicle with E15 and damage occurred. The court held that EPA’s waiver determination concluded that no damage would occur and that the asserted link between the waiver and potential lawsuits was not strong enough to support standing. A petroleum industry group asserted that the waiver would require them to spend money to accommodate the new fuel at the production, transportation and retail levels. The court held that the waiver does not require any entity to blend or sell E15 and that the decision to sell E15 would be a voluntary one by the individual companies, however much the waiver may contribute to conditions driving such a decision. Thus any alleged injury would be traceable to a business decision, not the waiver.  

A food manufacturing group asserted standing on the ground that formulation and sale of E15 would increase the cost of corn and thus harm their members’ businesses. According to the court, the economic interest it asserted was not within the zone of interests the CAA’s waiver provision was designed to protect or regulate. Although the RFS calls for EPA to consider impacts on food costs, the court found the CAA waiver provisions, although they dealt with fuel, were not “integrally related” to the RFS .