An alliance of ethanol, agriculture and clean fuel organizations led by the Urban Air Initiative is challenging the EPA over regulatory barriers to higher blends of ethanol they say are illegal. An opening brief in the case was filed this week in the D.C. Circuit Court of Appeals and oral arguments are expected this fall.

Specifically, the brief argues that EPA’s interpretation of the “substantially similar” provision of the Clean Air Act is obsolete and that EPA’s ruling last year permitting year-round sales of E15 should include the sale of fuel blends containing more than 15% ethanol, consistent with prior guidance allowing retailers to sell E20 and E30 under the Clean Air Act.

Today automakers use test fuels with 10% and 15% ethanol to certify most vehicles. The brief argues that since ethanol is now used in the certification of motor vehicles, the sub-sim law no longer limits the addition of ethanol to gasoline. Therefore, the court should reject EPA’s limit on the sale of gasoline with more than 15% ethanol. In the alternative, the brief argues that EPA’s only rationale for limiting the rule to E15 was refuted by the scientific evidence submitted during the notice-and-comment period, science that EPA simply chose to illegally ignore. As a remedy, the brief asks the Court to order EPA to allow ethanol to compete for greater market share against harmful petroleum-based fuel additives, but without disturbing the rule allowing the year-round sale of E15.

Co-petitioners in the case include National Farmers Union, South Dakota Farmers Union, Farmers Union Enterprises, Jackson Express, Jump Start, Clean Fuels Development Coalition, Big River Resources LLC, Fagen Inc., Glacial Lakes Energy LLC, and Little Sioux Corn Processors.