The full US Court of Appeals for the District of Columbia Circuit on Tuesday said it would not reconsider an August decision by a three-judge panel of the court that tossed out a key challenge to the Environmental Protection Agency's approval of gasoline blends containing 15% ethanol.
The opinion rejects an appeal filed by trade groups representing the food, engine and oil industries, including the American Petroleum Institute and the American Fuel & Petrochemical Manufacturers.
API and AFPM did not immediately respond to a request for comment.
The DC Circuit ruled in August that the groups lacked standing to bring the lawsuit.
In January 2011, EPA approved E15 for use in cars and trucks made in 2001 or later. The agency started registering fuel makers' blends in the spring and lifted the final regulatory hurdle in June. A Kansas service station became the first to offer E15 in July.
The approval has faced opposition from makers of small-engine equipment, who say gas station customers will ignore warnings on pumps, and from automakers, who have warned that using E15 would void car owners' warranties.
As he did in August, Judge Brett Kavanaugh dissented from Tuesday's decision and reiterated his belief that the groups "plainly have standing" to challenge the E15 approval.
Kavanaugh said petroleum producers are "directly regulated parties" under the policy and fit within the Supreme Court's definition of an injured party that can bring a claim to court.
He called EPA's decision not to challenge refiners' standing "quite telling."
"EPA did not raise Article III standing no doubt because it fully understands how this program actually works, and EPA appreciates that the combination of the statutory renewable fuel mandate and EPA's E15 waiver will obviously force petroleum producers to refine and sell E15," he wrote.
Kavanaugh said the other judges reviewing the case wrongly speculated that petroleum makers can meet EPA's Renewable Fuel Standard without refining and selling E15.
"In fact, the ethanol producers who sought the E15 waiver specifically argued to EPA that the E15 waiver was 'necessary' for petroleum producers to meet the renewable fuel mandate," he added. "What better evidence do we need? The petroleum producers have shown, at a minimum, the requisite 'substantial probability' that the E15 waiver will require them to refine and sell E15."
In a footnote, Kavanaugh highlighted auto club AAA's recent warning that E15 could cause widespread engine damage. The group urged EPA and the ethanol industry in November to stop allowing sales of the fuel until motorists are "better protected."
The Renewable Fuels Association, an ethanol industry trade group, said at the time that AAA's warning betrayed an allegiance to Big Oil and its "pathetic ignorance" of the amount of testing E15 underwent before its approval.
Grown Energy, another group representing ethanol makers, said Tuesday's court order would open the door to further investment in E15 fueling infrastructure.
"Today's result is a win-win for American consumers, providing them with both a choice and savings at the pump, and is a critical step in increasing market access," CEO Tom Buis said in a statement. "Not only will E15 help reduce our dependence on foreign oil, it will also continue to create jobs here at home and revitalize rural economies, while also improving our environment by increasing the availability and use of a cleaner burning fuel."
