Forgot password?
Sign up today and your first download is free.

The Week Ahead

Posted: October 6, 2014

D.C. Circuit Hears E15 Misfueling Rule Suit, EPA Seeks Input On ESA Consultation Policy

The U.S. Court of Appeals for the District of Columbia Circuit heard arguments Oct. 6 in a suit filed by automakers and the oil sector over EPA's rule designed to prevent misfueling of vehicles with higher ethanol blends. Meanwhile, EPA is holding a workshop to take comment from stakeholders on a 2013 policy for interagency consultation on Endangered Species Act (ESA) issues.


The D.C. Circuit heard oral arguments Oct. 6 in Alliance of Automobile Manufacturers, et al. v. EPA, which challenges the agency's rule to prevent drivers from using 15 percent ethanol (E15) to fuel engines that manufacturers say could be damaged or destroyed by the high-ethanol blend.

Refiners, automakers and other critics of the policy have argued that the agency's mitigation plan is inadequate to ensure that consumers will be adequately informed about using E15 -- which contains 50 percent more ethanol than 10 percent blends -- only in approved engines. The litigants fear they will be held liable if the fuel is used in older cars, boats, lawnmowers or other engines not approved for the fuel and are damaged.

EPA's 2011 E15 misfueling mitigation rule requires dispensers to post signs warning that misfueling is prohibited; signs at E15 pumps displaying a specific label saying which vehicles can handle the higher blends; information about the fuel in product transfer documents; and that manufacturers, blenders and distributors of E15 conduct surveys to assess compliance with the rule. But two judges indicated that the plaintiffs might lack standing to pursue their suit.

Meanwhile, The Environmental and Energy Study Institute is hosting a briefing the same day in Washington, D.C., examining technologies for producing commercial-scale cellulosic ethanol from agricultural residue such as corn husks. The event comes as cellulosic fuel producers are threatening to sue EPA over what they say is flawed methodology that led to low production targets for the biofuel in the agency's proposed 2014 renewable fuel standard.

ESA Review

EPA, the Department of Agriculture and the Fish and Wildlife Service and National Marine Fisheries Service are hosting a joint stakeholders' forum Oct. 6 to take feedback on the agencies' interim approaches for improving consultations under the ESA. EPA and the other agencies implemented the temporary framework in November after years of stalled ESA reviews to draw on recommendations from the National Academy of Sciences (NAS) that federal officials use a single collaborative process that addresses the federal agencies' different statutory requirements.

While the framework was initially well-received, environmentalists have criticized EPA for its decision to only apply the NAS approach in some cases, bypassing consultation to approve a new pesticide that advocates say could affect species listed under the ESA.

ABA Conference

EPA Administrator Gina McCarthy will deliver a keynote address at the American Bar Association (ABA) Environment, Energy and Resources Section's annual conference Oct. 8 in Miami, highlighting the agency's planned “Next Generation” compliance regime. The program aims to incorporate streamlined regulatory design, widespread electronic reporting and other steps to improve compliance with environmental laws, partly in response to expected budget cuts that would leave EPA unable to conduct as many inspections and enforcement actions as it has in recent years.

Other items on the ABA meeting's agenda include discussion of the Supreme Court's decision on EPA's greenhouse gas (GHG) rules, the agency's proposed regulations of GHGs from power plants, Clean Water Act policy (CWA) in Florida and the brownfields program, among others.

Tier 3 Litigation

The ethanol industry is set to submit its first brief challenging EPA's “Tier 3” vehicle emissions rule Oct. 8. Petitioners in the suit, Energy Future Coalition, et al. v. EPA, will ask the D.C. Circuit to force EPA to use a 30 percent ethanol blend (E30) in the “test fuel” that it uses to measure fuel economy, as a way to compel automakers to certify their engines on higher ethanol blends.

The rule, finalized earlier this year, increased the amount of ethanol in EPA's certification fuel from zero (E0) to a 10 percent ethanol (E10) gasoline blend, but did not change the calculation used by the agency to account for the decreased energy content of ethanol in assessing fuel economy and vehicle GHGs. If the D.C. Circuit does mandate E30 as a test fuel, the need for a new calculation will become still more severe, a Department of Energy expert said shortly after the suit was filed.

Stormwater Conference

The Southeast Stormwater Association is holding its annual conference Oct. 8-10 in Charleston, SC. Region 4 Administrator Heather McTeer Toney is scheduled to give opening remarks Oct. 8, and the agenda includes presentations from scientists and industry figures on new conditions in EPA- and state-crafted storm sewer permits, Federal Insecticide, Fungicide and Rodenticide Act rules for managing pesticide runoff, and green infrastructure development.

Interpretive Rules

The Obama administration is set to file its first merits brief before the Supreme Court in Perez, et. al, v. Mortgage Bankers Association, et al., which could set new standards for how EPA and other agencies can revise their interpretations of rules -- including the agency's controversial policy exempting some farm practices from CWA permits.

The D.C. Circuit opinion under appeal requires federal agencies to follow notice-and-comment procedures before revising existing “interpretive rules,” even though the Administrative Procedure Act allows new interpretive rules to be crafted without notice and comment. A ruling from the high court could affect not only the CWA permit rule but a host of agency guidances after the 2016 election, since new administrations often move to amend their predecessors' interpretations of rules after taking office, epecially if the White House has changed parties.

Other Events

Law firm BakerHostetler is hosting a “Shale Symposium” Oct. 6 to discuss new developments in Ohio's fracking regulations, including presentations from Rick Simmers, who heads the Ohio Department of Natural Resources' oil and gas office, and state Rep. Ron Amstutz (R), Chair of the Ohio House of Representatives' finance committee.

The Administrative Conference of the United States, a federal advisory agency charged with improving the administration process, will meet Oct. 7 to discuss recommendations for how agencies deal with petitions for rulemaking, including the creation of best practices for soliciting input from citizens and responding to the petitions.