EPA Ethanol-Rule Challenge Won’t Be Reconsidered, Judges Say

A federal appeals court refused to reconsider a decision to throw out a lawsuit challenging an Environmental Protection Agency rule that allows higher concentrations of corn-based ethanol in gasoline.

On the losing side were grocery, auto and oil industry trade groups that sued in 2010, saying using more corn-based ethanol in auto fuel would harm engines and push up the price of food and gasoline. Today’s decision upheld a three-judge panel’s ruling in August that said the industries couldn’t show they had suffered specific harm as a result of the EPA’s decision.

Six of seven judges who reviewed the case voted to let stand the earlier decision. U.S. Circuit Judge Brett Kavanaugh said in a five-page dissent that throwing out the case because the industries lacked standing to sue was mistaken.

The case has “significant economic ramifications for the American food and petroleum industries, as well as for American consumers who will ultimately bear some of the costs,” Kavanaugh wrote. He said the EPA would have lost if the court had considered the merits of the arguments.

August Dissent

Kavanaugh also cast a dissenting vote in the August decision.

The Grocery Manufacturers Association, the American Petroleum Institute and groups representing companies including Tyson Foods Inc. and Coca-Cola Co., challenged two EPA decisions that allowed the introduction of E15, a gasoline blended with ethanol.

Carmakers have told Congress that vehicle warranties won’t cover damage caused by E15.

The EPA in 2010 granted a request from ethanol producers to permit increased concentrations of the corn-based fuel in gasoline to 15 percent from 10 percent for vehicles made for the model year 2007. The new rule was later extended to all cars made after 2001.

Blends of 15 percent ethanol are referred to as E15, while concentrations of 10 percent and 85 percent are called E10 and E85.

The case is Grocery Manufacturers Association v. U.S. Environmental Protection Agency, 10-1380, U.S. Court of Appeals for the District of Columbia Circuit (Washington).