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The Reports of E15’s Death…

Posted on 09/01/2021

In January of this year, the ethanol industry celebrated the 10-year anniversary of EPA’s waiver approving blends of up to 15 percent ethanol in all cars and light trucks model years 2001 and newer. The oil industry celebrated the 10-year anniversary of filing their first lawsuit against EPA’s E15 approval a few minutes later.

Since the Renewable Fuel Standard was first enacted back in 2005, and especially after it was expanded in 2007, Big Oil’s response has been a steady stream of ethanol misinformation, fearmongering, and lawsuit after lawsuit after lawsuit. This summer, they finally won a couple.

Three Fridays in a row in late June and early July this year, days I refer to as “F.U. Fridays,” courts handed down decisions against ethanol. Sort of. If you read “press” accounts from media who routinely copy and paste releases they get from oil industry PR firms, it sounded like the end for E15. However, to misquote Mark Twain’s most famous misquotes; “The rumors of E15’s death have been greatly exaggerated.”   

The first ruling was the Supreme Court saying small refiners could request an “extension” to a small refinery exemption (SRE) even if they didn’t have an exemption in place. Kind of like playing extra time in a soccer game – but doing it a few months or years after the original game ended. The court didn’t say EPA had to grant any of the out-of-thin-air extensions or change rules EPA ignored when granting illegal SREs in the previous administration, so other than making up a completely different meaning for a word that has meant something else for centuries, little changed for ethanol or E15.   

The second one ruled against both ethanol and oil and said EPA should have asked someone to give them a report on whether ethanol production would affect whooping cranes or some big fish, so they’re going to do that. Like the SCOTUS ruling, it didn’t change how EPA regulates renewable fuel.

The third ruling was more problematic and completely opposite from the SCOTUS ruling. It said EPA couldn’t approve a one-pound Reid vapor pressure (RVP) waiver for E15, because the law granted a one-pound summer RVP waiver for gasoline containing 10 percent ethanol, and E15 has more than 10 percent ethanol. Lawyers for the ethanol industry argued E15 contains 10 percent ethanol, which it most certainly does, and E15 has lower vapor pressure than E10, which is also true, but the court said 10 percent is 10 percent. Problematic, yes. Fatal? No.

In addition to the fact 40 percent of the gasoline sold in the U.S. is sold in areas with low RVP base fuel which keeps both E10 and E15 under the RVP limit without any kind of waiver, the way courts and appeals work, this year’s summer RVP season, which ends Sept. 15 won’t be affected. The court ruling also mobilized elected officials — who thought EPA could easily approve a cleaner, less expensive, home-grown, plant-based fuel without new legislation — to offer bills to fix the wording the court says is written in stone.

E15 will be continue to be sold one way or another, and retailers have better things to do than sit around and worry about litigation and legislation. In the mantime, EPA has now linked to the “Flex Check” compatibility tool on flexfuelforward.com, acknowledging the fact much of the equipment already in your convenience stores and gas stations is already compatible with E15. When things settle down this fall, find out if you could be selling E15. And if you have questions, come and see ACE at NACS or one of the regional trade shows we attend every year; send us an email, or use your phone as a phone and give us a call. Contact info can be found at ethanol.org.

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