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Appeals court dismisses E15 challenge

The National Marine Manufacturers Association is disappointed by a federal appeals court’s decision to dismiss a challenge to the Environmental Protection Agency’s decision to allow E15 into the fuel supply and is evaluating litigation options.

On Friday, the U.S. Court of Appeals for the D.C. Circuit dismissed on procedural grounds the recreational boating industry’s challenge of the EPA’s decision to allow gasoline with 15 percent ethanol into the fuel supply, according to the NMMA.

The Engine Products Group, a coalition of organizations that includes the NMMA, sought to block the EPA decision, which puts the potentially dangerous E15 at gas pumps across the country.

Late in 2011, the EPA approved E15 for a subset of on-highway motor vehicles. Earlier that year the EPA approved E15 for model year 2007 and newer vehicles as part of its response to a waiver petition filed in the spring of 2009 by pro-ethanol lobby group Growth Energy.

The NMMA said that although the decision was a setback, it does not speak to the underlying merits of the case — whether the EPA was correct in its interpretation of the Clean Air Act to allow for a partial waiver. In his dissent, Judge Brett Kavanaugh, who presided over the case, found that “EPA ran roughshod over the relative statutory limits” and is “flatly contrary to the plain text of the statute,” according to a statement.

The NMMA said it is confident that if the court ruled on the merits of the case it would find that the EPA overstepped its authority for a partial waiver of E15. For that reason, the NMMA is evaluating its litigation options.

The partial waiver excluded marine engines and other non-road engines, such as snowmobiles and lawn and garden equipment. The NMMA has been concerned that the waiver will lead to widespread misfueling by consumers.

Recently, at its own cost, the NMMA distributed labels for the marine industry to warn against fueling marine engines with E15.

“NMMA will continue to evaluate and address policy to protect boaters from misfueling and product failures associated with incompatible fuels and will take the necessary actions to ensure compatible fuels remain available and affordable,” NMMA president Thom Dammrich said in the statement. “EPA has failed in each regard and approved E15 in violation of its clear statutory requirements.”

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