IN the latest round of the food-versus-fuel battle that is playing out in federal court, score one for the renewable fuel industry after a federal appeals court refused petitions to reconsider a ruling that tossed out a lawsuit challenging the Environmental Protection Agency's ruling approving a 15% blend of ethanol (E15) in the fuel supply.
Six members of a seven-judge panel voted to uphold the previous decision by the U.S. Court of Appeals for the District of Columbia Circuit dismissing the suit, which was filed by the Grocery Manufacturers Assn., the American Petroleum Institute (API) and groups representing large food producers such as Tyson Foods and Coca-Cola. The ruling confirmed that the petitioners lacked the legal standing necessary to bring the suit in the first place.
Dating back to 2010, the food, automotive and petroleum industry interests argued that using more corn-based ethanol in the U.S. fuel supply would harm engines while driving up the price of both food and fuel. In August, a three-judge panel dismissed the case because the plaintiffs could not prove that they were sufficiently harmed by the EPA decision approving E15.
EPA regulations state that E15 can be used in model year 2001 and newer cars, although auto makers have thus far refused to cover E15 use in most warranties despite EPA's extensive testing and subsequent ruling.
Growth Energy chief executive officer Tom Buis called the ruling a "major victory for the renewable fuels industry" that would open the door for further investment in new fueling technologies. He said the move is a "win-win" for consumers that provides both a choice and savings at the pump.
Renewable fuel advocates said E15 will reduce U.S. dependence on foreign oil, create jobs in rural America and improve the environment as a cleaner-burning fuel.
The American Fuel & Petrochemical Manufacturers (AFPM) criticized the court's ruling as a "procedural block" of the case rather than allowing the merits of the case to be heard.
"We remain concerned that EPA's partial waiver will result in significant mis-fueling and will harm consumers," AFPM general counsel Rich Moskowitz said in a statement. "EPA has authorized the sale of an ethanol blend that virtually every automobile manufacturer has warned will damage existing vehicles."
Studies backed by the auto and petroleum industries have suggested that E15 causes engine damage -- something that did not go unnoticed by the lone dissenting judge ruling on the legal appeal. Judge Brett Kavanaugh penned a five-page opinion saying the case could potentially have "significant economic ramifications" on the industries and consumers involved and argued that EPA would have lost the case if the court had considered the merits of the parties' arguments.
Moskowitz said the plaintiffs are "analyzing the decision" to determine if an appeal to the Supreme Court is warranted, citing Kavanaugh's "strong dissent" as cause for consideration.
Buis is one of the key spokesmen for the renewable fuel sector and stands squarely opposite the U.S. petroleum industry, which would like nothing more than a full repeal of the renewable fuel standard (RFS).
On Jan. 15, API announced a new advertising campaign geared toward just such a goal.
"The lengths to which 'Big Oil' will go to protect their absolute lock on fuel markets are astounding," Buis said. "While they often pay lip service to the importance of renewable fuel for our country's energy needs, at every turn, they work to undermine them."
Buis said API claims that the "blend wall" -- the level of ethanol production needed for blending into the fuel supply -- is proof that the RFS is "unworkable," but the blend wall exists because the oil industry has erected "every possible barrier to increased blends of renewable fuels."
Bob Dineen, president of the Renewable Fuels Assn., concurred, saying the RFS is a proven success.
"The RFS is stimulating investment in next-generation ethanol, which is coming to fruition before our eyes," Dineen explained. "The RFS is also driving the marketplace beyond ethanol's use as an additive, which was a fundamental objective of the program. Higher ethanol blends will be key to providing consumers the choice at the pump they want and the relief for the wallet they need."
Growth Energy, reacting to API's call for a repeal of the RFS, noted that since 2005, renewable fuels have decreased foreign oil imports by 32% while creating 400,000 domestic jobs.