LINCOLN, Neb. (DTN) -- The states of Iowa and Nebraska asked a federal court on Wednesday to require EPA to "promptly" finalize a rule to allow permanent, year-round E15 sales in eight states, rejecting the agency's proposed plan to finalize the rule by March 28, 2024.
On April 28, 2022, governors in eight states requested a change allowed by the Clean Air Act to reject the use of the 1-psi waiver for E10, or a 10% ethanol-blended gasoline. The action would clear the way for permanent, year-round E15 sales in the states. E15 is a blend of up to 15% ethanol and 85% gasoline.
The states of Iowa and Nebraska said in a brief filed in the U.S. District Court for the District of Southern Iowa that granting EPA time to finish the rule by March would be in continued violation of the law.
EPA was required by law to finalize a rule by July 2022 -- 17 months ago.
The states are concerned that finalizing the rule in March would make it difficult to open up E15 sales in time for the start of the summer driving season in June.
"EPA admits that it had a mandatory duty under the act to act within 90 days but now asks this court to give it more than 90 days from this filing to further delay its decision-making," the states said in the brief.
"EPA now invites this court to endorse its continued violation of the act and give it until March 2024 to finalize its proposed rule. This court should decline EPA's invitation and should enjoin EPA to finalize its rule promptly."
The rule would result in applying the same volatility limitation to both E15 and E10 -- essentially putting E10 and E15 on the same footing in those states beginning in 2024. The eight states include Illinois, Iowa, Minnesota, Missouri, Nebraska, Ohio, South Dakota and Wisconsin.
The Clean Air Act requires EPA to issue a rule setting aside the waiver if governors request it, and the law requires a rule to be finalized within 90 days.
When EPA released its proposal on March 6, 2023, that was nearly a full year after the states' request was made.
"EPA's action prejudice plaintiff states," the states said in the brief.
"EPA seeks to finalize its proposed Rule on March 28 of next year -- effectively one month before the high-ozone summer driving season's start. Finalizing the rule then will likely deny access to the fuels required by the act and consistent with the governors' letter supporting those fuels' lower emissions. Thus, EPA's proposed deadline is unreasonable. EPA contends that it needs more time to process comments and petitions following the notice-and-comment period that it initiated to promulgate its rule. But EPA argues with unclean hands."
The states argue EPA has no reason for the long delay because, during the past five years, the agency has issued a series of emergency waivers in certain regions to allow year-round E15 sales.
"It follows then that the EPA could quickly contemplate what logistical and technical issues it may face with issuing a standard waiver -- if not in 90 days, then certainly in the 582 days it has had since receiving the requesting states' notice under the act."
Read more on DTN:
"EPA: States E15 Rule Final in March," https://www.dtnpf.com/…
"Iowa, Nebraska Force EPA's Hand on E15," https://www.dtnpf.com/…
Todd Neeley can be reached at todd.neeley@dtn.com.
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