US organisations launch ethanol legal case

US-based National Marine Manufacturers Association (NMMA) has filed a suit in the U.S. Court of Appeals for the D.C. Circuit challenging an October 13, 2010 decision by the Environmental Protection Agency (EPA) to partially approve E15 for a subset of on-highway motor vehicles.

NMMA is joining the Outdoor Power Equipment Institute (OPEI), the Alliance of Automobile Manufacturers (AAM) and the Association of International Automobile Manufacturers (AIAM) in a newly-formed coalition—the Engine Products Group (EPG)—in pursuing this legal challenge. Vann Ness Feldman will serve as counsel.

“NMMA regrets having to pursue litigation on this matter, but it is clear that EPA has not fulfilled its statutory obligations to ensure the safe introduction of E15,” said NMMA president Thom Dammrich.

“Consequently, we and our industry partners have determined that it is necessary to seek relief in the courts in order to protect our manufacturers and our consumers.

“Throughout this process, NMMA has strongly and consistently urged full scientific testing on marine engines and equipment, as required by law, and the rational evaluation of policy mechanisms to protect consumers from misfueling and product failures associated with incompatible fuels, and regulatory actions to ensure that compatible fuels remain available and affordable,” said Dammrich.

“EPA has failed in each regard and approved E15 in contravention of its clear statutory requirements,” he said.

Kris Kiser, speaking on behalf of the Engine Products Group, said: “Our organisations collectively represent some 400 million engine products used by tens of millions of people every day in the US. The safe and reliable use of those products
is paramount to us and our customers, and the legal action we take today is to protect those customers.”

The petition, filed with the U.S. Court of Appeals for the District of Columbia Circuit, asks that EPA’s decision be remanded back to the Agency and requests judicial oversight and review over whether EPA’s “partial waiver” approval for E-15 fuels violates the federal Clean Air Act provisions, which expressly limit the circumstances under which EPA can approve applications for new fuels and fuel additives. The petition challenges the ability of EPA to grant a partial waiver for three specific reasons.

The Clean Air Act does not authorize EPA to issue any “partial waiver” decisions,
EPA’s own statute passed by Congress in 2007 states that fuels can’t be approved for the market that could cause any failures. Yet, E-15 has been shown to adversely affect engines in non-road products and later model year vehicles, cause emission failures and increase air pollution due to misfueling.

Further, administrative records fail to demonstrate that even new model year motor vehicles (other than “flexible fuel vehicles”) would not be damaged and result in failures when run on E-15.

The testing, upon which EPA made its decision, was put in the administrative record too late to permit meaningful comment or scrutiny from concerned groups and stakeholders.

“While all members of the EPG have and continue to support the development and use of safe and sustainable alternative fuels, the action EPA has taken to permit E-15 to be sold as a legal fuel, even if limited only to certain products, will have adverse consequences for the environment and consumers. A partial waiver, by its nature, necessarily will result in the misfueling of products not designed or tested for E-15 use,” said Kiser. 
AIAM’s President and CEO Michael J. Stanton said: “AIAM supports renewable fuels, including ethanol. Our concern is that EPA prematurely granted the partial waiver before critical studies on the effects of E-15 use were completed. We want to be sure that any new fuel will not increase air pollution, harm engines or endanger consumer safety,”

“We are pursuing this legal action reluctantly and remain committed to continuing to work with the Administration and other stakeholders to establish prospective, performance-based targets to address the challenging issues related to the introduction of new fuels into the marketplace,” said Stanton.

A detailed fact sheet on the joint petition filing can be found at: http://members.opei.org/news/detail.dot?id=12146.