Fuel Fight at the D.C. Circuit

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Written By admin at Friday, August 17th, 2012


The battle over ethanol came to a federal appeals court today, with prominent conservative judge Brett Kavanaugh saying the Environmental Protection Agency “ran roughshod” over the law when it permitted fuel refiners to bring gasoline blended with 15% ethanol onto the market.

Unfortunately for the petroleum industry, the food industry and a host of others who dislike E15 fuel, Judge Kavanaugh couldn’t persuade his two colleagues on the U.S. Court of Appeals for the District of Columbia Circuit to reach the merits of the issue. Instead, Judge David Sentelle and Judge David Tatel ruled that the plaintiffs lacked standing to bring the case.

The majority opinion’s lengthy discussion of standing prompted us to reread Jess Bravin’s piece on that legal concept from a few years ago. As Jess reminded us, some interesting questions—such as whether an obscure constitutional clause might prevent Hillary Clinton from becoming secretary of State—never get answered in court because no one has the right to raise them in a lawsuit.

For the moment, then, those who want to know whether E15 is legal will have to turn to Judge Kavanaugh’s opinion, at least to get one side of the issue.

The EPA allowed E15 only for use in cars made after 2000, acknowledging that older cars might be damaged by the higher concentration of ethanol. Judge Kavanaugh said the Clean Air Act allowed the EPA to approve new types of fuel only if they wouldn’t damage any cars on the road. The law doesn’t permit partial waivers, he said.

“EPA’s disregard of the statutory text is open and notorious—and not much more needs to be said,” wrote the judge, a 47-year-old George W. Bush appointee sometimes mentioned as Supreme Court material for a future Republican administration.

Speaking of Supreme Court material, this case seems to meet some criteria for a high-court review. In a concurring opinion, Judge Tatel observed that lower courts have split on some of the standing issues in the case, and he all but invited the justices to have their say.

The EPA declined to comment on Judge Kavanaugh’s remarks. In a statement, the EPA said its E15 waiver doesn’t require anyone to use the fuel. Backers of E15 say consumers should be given the choice to fill their tanks with it.

Ethanol is in the news this summer because of the Midwest drought, which has slammed production of corn needed to make the fuel. Critics say the promotion of ethanol, including the EPA waiver allowing more of it to be blended with gasoline, is bad policy because it raises food prices.

Ethanol makers, who have traditionally been powerful in Washington, say their product has little or no effect on food prices, and they say the U.S. can reduce its dependence on Middle East oil by using a home-grown substance to help power cars and trucks.

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