Petition for Writ of Certiorari — Growth Energy, Petitioner v. American Fuel & Petrochemical Manufacturers, et al.
Supreme Court briefOct 4, 2021
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No. 21IN THE
Supreme Court of the United States
GROWTH ENERGY,
Petitioner,
v.
AMERICAN FUEL & PETROCHEMICAL
MANUFACTURERS, et al.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
ETHAN G. SHENKMAN
JONATHAN S. MARTEL
WILLIAM C. PERDUE
ARNOLD & PORTER KAYE
SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001
(202) 942-5000
SETH P. WAXMAN
Counsel of Record
DAVID M. LEHN
CARY A. GLYNN
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
(202) 663-6000
seth.waxman@wilmerhale.com
QUESTION PRESENTED
The Clean Air Act prohibits the summertime sale
of gasoline whose volatility, measured in Reid Vapor
Pressure, exceeds 9 pounds per square inch. 42 U.S.C.
§ 7545(h)(1). Blending ethanol into gasoline increases
the gasoline’s volatility. So, to promote the use of ethanol in gasoline, the Act includes an “[e]thanol waiver”
that increases the summertime volatility limit by 1
pound per square inch “[f]or fuel blends containing gasoline and 10 percent denatured anhydrous ethanol.” 42
U.S.C. § 7545(h)(4).
The question presented is:
Whether the United States Environmental Protection Agency may interpret the ethanol-waiver provision in 42 U.S.C. § 7545(h)(4) to apply to fuel blends
whose concentration of ethanol exceeds 10 percent.
(i)
PARTIES TO THE PROCEEDING
Petitioner, intervenor below, is Growth Energy.
Respondents, petitioners below, are American Fuel
& Petrochemical Manufacturers; American Motorcyclist Association; American Petroleum Institute; Citizens Concerned About E15; Coalition of Fuel Marketers; the National Marine Manufacturers Association;
and Small Retailers Coalition.
Respondent below was the United States Environmental Protection Agency.
Other petitioners below were Urban Air Initiative;
the Farmers’ Educational & Cooperative Union of
America, d/b/a National Farmers Union; Farmers Union Enterprises, Inc.; Big River Resources, LLC; Glacial Lakes Energy, LLC; Clean Fuels Development
Coalition; Fagen, Inc.; Jackson Express, Inc.; Jump
Start Stores, Inc.; Little Sioux Corn Processors, LLC;
and South Dakota Farmers Union.
Other intervenors below were the Renewable
Fuels Association and the National Corn Growers Association.
(ii)
CORPORATE DISCLOSURE STATEMENT
Growth Energy has no parent company and no publicly held company has a 10% or greater ownership interest in Growth Energy.
(iii)
TABLE OF CONTENTS
Page
QUESTION PRESENTED ............................................... i
PARTIES TO THE PROCEEDING .............................. ii
CORPORATE DISCLOSURE STATEMENT ............ iii
TABLE OF AUTHORITIES ......................................... vii
INTRODUCTION .............................................................. 1
OPINIONS BELOW .......................................................... 5
JURISDICTION ................................................................. 5
STATUTORY PROVISION INVOLVED ..................... 5
STATEMENT ...................................................................... 5
A. Factual Background ............................................. 5
B. Statutory Framework and Prior EPA
Volatility Regulations .......................................... 7
C. The Final Rule ..................................................... 11
D. Proceedings Below .............................................. 12
REASONS FOR GRANTING THE PETITION ........... 13
I.
THE DECISION BELOW CONFLICTS WITH
BASIC
PRINCIPLES
OF
STATUTORY
INTERPRETATION AS ESTABLISHED BY
THIS COURT’S PRECEDENT ....................................... 13
A. The Full Context Shows That
“Containing” in Section 7545(h)(4)
Means “Having at Least”................................... 13
B. The Court Below Incorrectly Held
That Congress Intended “Containing”
to Mean “Having Exactly”................................. 18
(v)
vi
TABLE OF CONTENTS—Continued
Page
C. At Most, the Statute Is Ambiguous and
EPA’s Interpretation Is Reasonable ............... 20
II. THE DECISION BELOW WILL HAVE
EXCEPTIONALLY
IMPORTANT
CONSEQUENCES .......................................................... 21
III. THIS CASE PRESENTS AN IDEAL—INDEED,
THE ONLY—VEHICLE TO RESOLVE THIS
CRITICAL ISSUE .......................................................... 23
CONCLUSION ................................................................. 24
APPENDIX A: Opinion of the United States
Court of Appeals for the District of Columbia Circuit, dated July 2, 2021 .................................. 1a
APPENDIX B: Order of the United States
Court of Appeals for the District of Columbia Circuit denying petition for panel rehearing, dated September 9, 2021 .......................... 21a
APPENDIX C: Order of the United States
Court of Appeals for the District of Columbia Circuit denying petition for rehearing
en banc, dated September 9, 2021 .......................... 23a
APPENDIX D: Relevant Statutory and Regulatory Provisions
42 U.S.C. § 7545(c), (f), (h), (o) ......................... 25a
40 C.F.R. § 80.27 ................................................ 70a
40 C.F.R. § 80.28 ................................................ 76a
vii
TABLE OF AUTHORITIES
CASES
Page(s)
Americans for Clean Energy v. EPA, 864 F.3d
691 (D.C. Cir. 2017) .................................................... 21
Caron v. United States, 524 U.S. 308 (1998) .................. 17
City of Arlington, Texas v. FCC, 569 U.S. 290
(2013) ............................................................................ 20
Doe v. Chao, 540 U.S. 614 (2004) ..................................... 17
EPA v. EME Homer City Generation, L.P.,
572 U.S. 489 (2014) ..................................................... 24
Hamdan v. Rumsfeld, 548 U.S. 557 (2006) .................... 17
HollyFrontier Cheyenne Refinancing, LLC v.
Renewable Fuels Ass’n, 141 S. Ct. 2172
(2021) ................................................................ 14, 19, 24
King v. Burwell, 576 U.S. 473 (2015) .................... 4, 13, 20
Lindahl v. Office of Personnel Management,
470 U.S. 768 (1985) ..................................................... 17
Michigan v. EPA, 576 U.S. 743 (2015) ........................... 24
Nixon v. Missouri Municipal League, 541 U.S.
125 (2004) ................................................................. 4, 17
Porter v. Nussle, 534 U.S. 516 (2002) ............................. 15
Utility Air Regulatory Group v. EPA, 573 U.S.
302 (2014) ..................................................................... 20
Waters Corp. v. Agilent Technologies Inc., 2019
WL 6255181 (D. Del. Nov. 22, 2019) ........................ 14
viii
TABLE OF AUTHORITIES—Continued
Page(s)
STATUTES AND REGULATIONS
28 U.S.C. § 1254 ................................................................... 5
42 U.S.C.
§ 7545 ................................................................... passim
§ 7607 ............................................................................ 24
49 U.S.C. § 32901 ............................................................... 20
Clean Air Act Amendments of 1990, Pub. L.
No. 101-549, § 216, 104 Stat. 2399............................... 9
21 C.F.R. § 101.30(b)(1)..................................................... 14
40 C.F.R.
§ 80.27 (1990) ................................................................. 8
§ 80.27 ..........................................................................8-9
§ 1090.80 ....................................................................9-10
LEGISLATIVE AND ADMINISTRATIVE
MATERIALS
S. Rep. No. 101-228 (1989) .............................. 2, 6, 9, 11, 16
H.R. 3030, 101st Cong. (1989) .......................................... 17
S. 1490, 101st Cong. (1989) ............................................... 17
44 Fed. Reg. 20,777 (Apr. 6, 1979) ..................................... 8
54 Fed. Reg. 11,868 (Mar. 22, 1989) .................................. 8
55 Fed. Reg. 23,658 (June 11, 1990) .................................. 8
56 Fed. Reg. 64,704 (Dec. 12, 1991) ............................. 2, 10
75 Fed. Reg. 68,094 (Nov. 4, 2010) .................................. 10
76 Fed. Reg. 4,662 (Jan. 26, 2011).................................... 10
79 Fed. Reg. 23,414 (Apr. 28, 2014) ................................... 8
ix
TABLE OF AUTHORITIES—Continued
Page(s)
OTHER AUTHORITIES
Air Improvement Resource, Inc., Analysis of
Ethanol-Compatible Fleet for Calendar
Year 2021 (Nov. 9, 2020), https://growth
energy.org/wp-content/uploads/2020/11/An
alysis-of-Ethanol-Compatible-Fleet-for-Cal
endar-Year-2021-Final.pdf........................................ 22
Growth Energy, American Drivers Reach 10
Billion Miles Driven on E15 (June 11,
2019), https://growthenergy.org/2019/06/11/
growth-energy-american-drivers-reach-10billion-miles-driven-on-e15/ .................................11-12
Growth Energy, American Drivers Reach 20
Billion Miles on E15 (Mar. 9, 2021), https://
growthenergy.org/2021/03/09/growth-ener
gy-american-drivers-reach-20-billion-mileson-e15/ .......................................................................... 12
Growth Energy, E15 Rapidly Moving into the
Marketplace (July 6, 2021), https://growth
energy.org/wp-content/uploads/2021/07/e15stations-2462-2021-07-06.pdf ..................................... 22
x
TABLE OF AUTHORITIES—Continued
Page(s)
Stillwater Associates LLC, Infrastructure
Changes and Cost to Increase Consumption of E85 and E15 in 2017, at 19 (July 11,
2016) (attached as Ex. 16 to Growth Energy Comments on EPA’s Proposed Renewable Fuel Standard Program: Standards for
2019 and Biomass-Based Diesel Volume for
2020 (Aug. 17, 2018), EPA Dkt. # EPA-HQOAR-2018-0167-1292), https://www.regula
tions.gov/document/EPA-HQ-OAR-2018-01
67-1292 ....................................................................22-23
U.S. Department or Energy, Alternative Fuels
Center, Ethanol Fuel Basics, https://afdc.
energy.gov/fuels/ethanol_fuel_basics.html
(visited Oct. 4, 2021) ..................................................... 6
Webster’s New Collegiate Dictionary (9th ed.
1990) ............................................................................. 14
IN THE
Supreme Court of the United States
No. 21GROWTH ENERGY,
Petitioner,
v.
AMERICAN FUEL & PETROCHEMICAL
MANUFACTURERS, et al.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
Growth Energy respectfully petitions for a writ of
certiorari to review the decision of the United States
Court of Appeals for the District of Columbia Circuit in
this case.
INTRODUCTION
Ethanol is a renewable fuel that has long been
blended with gasoline to make finished transportation
fuel. When ethanol is blended with gasoline, it raises
the volatility of the fuel relative to pure gasoline. Volatility, measured in pounds per square inch (“psi”) of
Reid Vapor Pressure (“RVP”), reflects how readily a
2
fuel evaporates. Evaporative emissions contribute to
the formation of harmful smog.
Concerned about evaporative emissions, Congress
amended the Clean Air Act in 1990 to prohibit the sale
of gasoline whose RVP exceeds 9 psi during the summer, when there is greater potential for evaporative
emissions to form smog. 42 U.S.C. § 7545(h)(1). Because blending ethanol with gasoline raises the RVP of
the fuel above 9 psi, that volatility limit would have
barred ethanol-blend gasoline from the market. That
was intolerable because, Congress recognized, “ethanol
blending … [has] beneficial environmental, economic,
agricultural, energy security and foreign policy implications.” S. Rep. No. 101-228, at 110 (1989). So, to ensure
that “ethanol blending … continue[s] to be a viable alternative fuel,” Congress also created an “[e]thanol
waiver” that raised § 7545(h)(1)’s summertime RVP
limit by 1 psi “[f]or fuel blends containing gasoline and
10 percent denatured anhydrous ethanol.” 42 U.S.C.
§ 7545(h)(4).
At that time, the only ethanol blend that met
EPA’s other applicable regulatory requirements to be
introduced into domestic commerce was E10, which is a
blend of 90% gasoline and 10% ethanol. EPA promptly
adopted a regulation that ensured that E10 would remain the only commercially available ethanol blend.
The regulation stated that to qualify for the 1-psi waiver, a fuel blend’s “concentration of the ethanol … must
be at least 9% and no more than 10%.” 56 Fed. Reg.
64,704, 64,710 (Dec. 12, 1991). Thus, even after EPA
later approved E15—a blend of 85% gasoline and 15%
ethanol—for introduction into commerce, that regulation effectively barred the sale of E15 during the summer. Today, more than 98% of all gasoline used in the
United States is E10—even though E15, with 50%
3
more ethanol than E10, better achieves the economic,
health, environmental, and security goals Congress
sought to achieve by creating the ethanol waiver for
volatility.
In 2019, EPA finally acknowledged that its interpretation of the ethanol waiver in 42 U.S.C. § 7545(h)(4)
made no sense and undermined Congress’s objectives.
There is no reason to believe that § 7545(h)(4)—whose
purpose was to promote the many important benefits of
ethanol blending, which is titled “[e]thanol waiver,” and
which expressly applies to “blends” of gasoline and ethanol—was intended to be restricted to a single ethanol
blend, E10, to the exclusion of blends that contain more
ethanol. Higher-ethanol blends increase the benefits of
ethanol that Congress sought, without increasing fuel
volatility, since they would still be subject to the same
RVP limit as E10 under the ethanol waiver. In fact, as
Congress understood when it created the ethanol waiver, the RVP of E15 (and other higher-ethanol blends) is
actually lower than the RVP of E10.
EPA, therefore, adopted the rule challenged here
“to create parity in the way the RVP of both E10 and
E15 fuels is treated under EPA regulations.” CAJA002. Reinterpreting § 7545(h)(4) to “establish[] a
lower limit, or floor, on the minimum ethanol content”
required for the 1-psi waiver, EPA amended its volatility regulations to make the 1-psi waiver available to
ethanol blends with “at least 10 percent ethanol,” including E15. CAJA013.
The court of appeals set aside the rule because it
held at Chevron step one that Congress intended the
ethanol waiver to apply only to E10. In the court’s
view, the ordinary meaning of the word “contain”—
standing alone, without a “modifier” such as “at
4
least”—is “contain exactly,” and therefore the statutory phrase “containing … 10 percent … ethanol” means
“containing exactly 10% ethanol.”
The court’s decision flouts the “fundamental canon
of statutory construction that the words of a statute
must be read in their context and with a view to their
place in the overall statutory scheme,” King v. Burwell,
576 U.S. 473, 492 (2015) (quotation marks omitted), and
the related principle that courts “cannot interpret federal statutes to negate their own stated purposes,” id.
at 493 (quotation marks omitted), or to “lead[] to absurd … results,” Nixon v. Missouri Mun. League, 541
U.S. 125, 138 (2004). The text, structure, and history of
the ethanol waiver show that Congress intended it to
apply to various ethanol blends to enable greater use of
ethanol, and that in context, Congress intended “containing” to mean “having at least.” EPA’s interpretation serves that purpose while faithfully adhering to
the volatility levels Congress deemed acceptable. The
court of appeals’ interpretation, in contrast, necessarily
attributes to Congress a self-defeating and bizarre intent: facilitating increased ethanol use as long as the
specified volatility limits are met, yet foreclosing
blends that have more ethanol than E10 from the market even if their RVP is no higher than E10’s or the
specific limits.
It is imperative that this Court reject the court of
appeals’ interpretation—and do so in this case. The decision below effectively bars E15 from being sold during the summer. The direct harm from those lost sales
is significant in its own right, but the potentially lost
economic, health, environmental, and security benefits
of increased ethanol use are much greater. E15 is
poised to grow significantly and could begin supplanting E10 as the default transportation fuel in the United
5
States—and every gallon of E15 that replaces E10 increases the amount of ethanol used by 50%. But that
can happen only if E15 can be sold year-round.
This petition presents the only opportunity for this
Court to correct the court of appeals’ error and avert
its serious harmful consequences. Because the court of
appeals held that the statute is unambiguous and because the D.C. Circuit has exclusive jurisdiction to review EPA regulations implementing § 7545(h)(4), there
is no possibility of further percolation, a circuit split, or
even a future decision from the D.C. Circuit that this
Court could review.
The Court should grant the petition and reverse
the decision below.
OPINIONS BELOW
The court of appeals’ opinion (App.1a-19a) is published at 3 F.4th 373 (D.C. Cir. 2021).
JURISDICTION
The court of appeals issued its opinion on July 2,
2021, and denied a timely rehearing petition on September 9, 2021. This Court has jurisdiction under 28
U.S.C. § 1254(1).
STATUTORY PROVISION INVOLVED
Relevant portions of 42 U.S.C. § 7545 are reprinted
in the appendix to this petition. App.25a-69a.
STATEMENT
A. Factual Background
1. Ethanol is a renewable alcohol made primarily
from corn. CAJA526. For more than forty years, etha-
6
nol has been used as a transportation fuel by being
blended into gasoline. Ethanol blending benefits the
economy, human health, the environment, and national
security. See infra p.21; S. Rep. No. 101-228, at 110.
Different gasoline-ethanol blends are sold in the
United States, including E10 (90% gasoline, 10% ethanol) and E15 (85% gasoline, 15% ethanol). Because E15
has 50% more ethanol than E10, E15 brings more of
ethanol’s many benefits than E10. CAJA031. Yet, today “more than 98% of U.S. gasoline” is E10. U.S.
Dep’t of Energy, Alternative Fuels Data Center, Ethanol Fuel Basics.1
The primary barrier to greater use of E15 is regulatory. As detailed below, EPA first allowed E15 to be
sold in 2010, but EPA maintained volatility regulations
effectively barring the sale of E15 during the four-anda-half month summer season—the heaviest driving period of the year. The effect of that regulatory limitation
was far greater than simply preventing E15 sales during the summer season; it hamstrung E15’s ability to
grow year-round and potentially to supplant E10 as the
default fuel nationally. See infra pp.22-23.
2. “Measured in [psi] of [RVP], volatility reflects
how readily gasoline evaporates.” App.3a. The evaporative emissions of gasoline contribute to the formation
of ground-level ozone smog, and “the greater the RVP,
… the larger the amount of ozone formed.” Id. (quotation marks omitted); CAJA008. The potential for evaporative emissions to form smog is higher in the summer. App.3a-4a; CAJA008.
1
https://afdc.energy.gov/fuels/ethanol_fuel_basics.html.
7
Ethanol affects the volatility of gasoline, but in a
nonlinear way. During the summer, E10’s RVP is
about 10 psi, but that represents the peak RVP for ethanol-blends: adding ethanol to gasoline increases the
fuel’s RVP until the ethanol concentration reaches
10%—i.e., E10—at which point adding more ethanol
lowers the fuel blend’s RVP. CAJA254; CAJA051. The
following graph depicts this phenomenon:
CAJA254 (vertical lines and accompanying labels added).
B. Statutory Framework and Prior EPA Volatility Regulations
The Clean Air Act establishes “a comprehensive
scheme for regulating motor vehicle emission and fuel
standards for the prevention and control of air pollution.” App.2a (quotation marks omitted). As relevant
here, 42 U.S.C. § 7545(f) declares that it “shall be unlawful for any [fuel] manufacturer … to first introduce
into commerce, or to increase the concentration in use
of, any fuel … for use by any person in motor vehicles
… which is not substantially similar to any fuel … uti-
8
lized in the certification” of a “vehicle or engine.” Id.
§ 7545(f)(1). But EPA may “waive” this restriction if it
determines that a specified fuel or “concentration
thereof[] will not cause or contribute to a failure of” any
vehicle or engine to meet the emissions standards to
which it was certified. Id. § 7545(f)(4).
E10 received a waiver under § 7545(f)(4) in 1978, allowing it to enter the transportation-fuel market in
1979. 44 Fed. Reg. 20,777 (Apr. 6, 1979); see App.5a.
EPA later designated E10 a certification fuel for emissions testing of vehicles of model year 2017 and later.
79 Fed. Reg. 23,414, 23,419-23,420 (Apr. 28, 2014).
In 1989 and 1990, EPA promulgated regulations for
gasoline volatility. 54 Fed. Reg. 11,868 (Mar. 22, 1989);
55 Fed. Reg. 23,658 (June 11, 1990). The regulations
generally limited gasoline’s RVP to 9 psi during “regulatory control periods,” which ran from May 1 or June 1
(depending on the type of facility) to September 15. 40
C.F.R. § 80.27(a) (1990). Because the RVP of ethanolblend gasoline is generally between 9 psi and 10 psi in
the summer season, EPA’s volatility regulation would
have barred ethanol-blend gasoline from the market
during the summer season. To avoid that, EPA included in its regulations “[s]pecial provisions for alcohol
blends,” which permitted such fuels to be used during
the summer season if their RVP did “not exceed the
[otherwise] applicable standard … by more than one”
psi—i.e., if the RVP did not exceed 10 psi. Id.
§ 80.27(d)(1). To qualify for this 1-psi waiver, the regulation stated, “gasoline must contain at least 9% ethanol
(by volume),” with “[t]he maximum ethanol content of
gasoline … not exceed[ing] any applicable waiver conditions under” § 7545(f)(4). Id. § 80.27(d)(2).
9
At the time EPA adopted those regulations, the
maximum ethanol content permitted under any applicable waiver conditions under § 7545(f)(4) was 10% (per
the 1978 E10 waiver). Accordingly, in practice E10 was
the highest-ethanol blend that could qualify for the 1psi waiver. But these regulations would have allowed
higher-ethanol blends, including E15, to receive the
same 1-psi allowance had they also received a
§ 7545(f)(4) waiver.
Congress subsequently codified EPA’s volatility
regulations in § 7545(h). Clean Air Act Amendments of
1990, Pub. L. No. 101-549, § 216, 104 Stat. 2399, 2489.
With certain exceptions not relevant here, § 7545(h) directs EPA to promulgate a regulation making it “unlawful for any person during the high ozone season to
sell, offer for sale, dispense, supply, offer for supply,
transport, or introduce into commerce gasoline with
[RVP] in excess of 9.0” psi. 42 U.S.C. § 7545(h)(1).
Consistent with its prior regulations, EPA defined the
high ozone season, or “summer season,” as May 1 or
June 1 (depending on the type of facility) to September
15. 40 C.F.R. §§ 80.27(a)(1) & (2), 1090.80; see CAJA2
n.3.
But Congress recognized that the 9-psi RVP limit
set by § 7545(h) “would likely result in the termination
of the availability of ethanol in the marketplace” given
its higher summer RVP, thereby depriving the country
of the “beneficial environmental, economic, agricultural,
energy security and foreign policy implications” of
“ethanol blending.” S. Rep. No. 101-228, at 110. Consequently, Congress also provided an “Ethanol waiver”
in § 7545(h) that mirrored EPA’s prior special provisions for alcohol blends. The first clause of the ethanol
waiver adopts EPA’s prior 1-psi allowance: “For fuel
10
blends containing gasoline and 10 percent denatured
anhydrous ethanol, the [RVP] limitation under this
subsection shall be one [psi] greater than the applicable
[RVP] limitations established under” § 7545(h)(1). 42
U.S.C. § 7545(h)(4). The second clause establishes a
compliance defense for downstream parties, such as
distributors, blenders, and retailers, which have limited
ability to control the content—and thus the RVP—of
the blends they distribute. Under this defense, such
downstream parties are “deemed to be in full compliance” with the volatility limits set by § 7545(h)(1) so
long as the blend’s gasoline portion complies with the
applicable RVP limits, “the ethanol portion of the blend
does not exceed its waiver condition under subsection
(f)(4)”—whatever that limit might be—and there are no
additives that increase the RVP of the ethanol portion.
Id. § 7545(h)(4)(B).2
In 1991, EPA revised its volatility regulations to
implement § 7545(h). The amended regulations provided that, to qualify for the 1-psi waiver, a fuel blend’s
“concentration of ethanol … must be at least 9% and no
more than 10%.” 56 Fed. Reg. 64,704, 64,710 (Dec. 12,
1991) (emphasis added). Thus, for the first time, the
summer RVP allowance was legally restricted to E10.
Two decades later, EPA granted partial waivers
for E15 under § 7545(f)(4), allowing E15 to be introduced into commerce. 75 Fed. Reg. 68,094 (Nov. 4,
2010); 76 Fed. Reg. 4,662, 4,682 (Jan. 26, 2011). But because EPA still restricted the 1-psi waiver to E10, E15
2
“Denatured” ethanol is “unfit for human consumption,” and
“anhydrous” ethanol is no more than 1% water. 40 C.F.R.
§ 1090.80.
11
was nearly impossible to sell during the four-and-a-half
month summer season. See App.5a-6a.3
C. The Final Rule
E15’s access to the market remained stunted until
the rulemaking at issue here.
Recognizing the
“anomal[y]” of using an RVP limit to bar the sale of a
fuel—E15—that has a lower RVP than the predominant fuel—E10—EPA promulgated the Final Rule in
June 2019 “to create parity in the way the RVP of both
E10 and E15 fuels is treated under EPA regulations.”
CAJA002, 012. To do so, EPA first determined that
E15 is “substantially similar” to E10 under § 7545(f)(1),
thus permitting E15 to be sold irrespective of the conditions imposed by the partial waivers EPA had granted E15 under § 7545(f)(4). CAJA002; CAJA014. EPA
then reinterpreted the phrase “containing gasoline and
10 percent denatured anhydrous ethanol” in
§ 7545(h)(4) to “establish[] a lower limit, or floor, on the
minimum ethanol content” required for the 1-psi waiver. CAJA013. Accordingly, EPA concluded that blends
with “at least 10 percent ethanol,” including E15, were
eligible for the 1-psi waiver. Id.
The Final Rule thus removed the RVP limited set
by § 7545(h)(1) as a barrier to E15 year-round sale. E15
was in fact sold in the summers of 2019, 2020, and 2021,
and predictably, annual E15 use immediately increased
substantially: during those three years—in which driving overall was suppressed by the Covid-19 pandemic—
drivers logged as many miles on E15 as they had in the
previous 10 years combined. Growth Energy, Ameri3
Today, “it is cost-prohibitive to produce ethanol blends with
volatility not exceeding 9.0 psi,” App.6a, as it was when Congress
enacted the ethanol waiver, S. Rep. No. 101-228, at 110.
12
can Drivers Reach 10 Billion Miles Driven on E15
(June 11, 2019)4; Growth Energy, American Drivers
Reach 20 Billion Miles on E15 (Mar. 9, 2021).5
D. Proceedings Below
Petroleum-industry trade associations and others
petitioned for review of the Final Rule in the D.C. Circuit, arguing that EPA’s interpretation of § 7545(h)(4)
conflicts with the statute because (they said) “containing” could only mean “containing exactly.” Intervenors
representing the biofuel industry—including petitioner
here—countered that § 7545(h)(4), interpreted in light
of its text, structure, purpose, and history, clearly
means that the 1-psi waiver is available to blends with
at least 10% ethanol. Alternatively, they argued that,
at a minimum, the ethanol waiver is ambiguous and, for
the same reasons, EPA’s interpretation is reasonable.
EPA defended its interpretation as reasonable.
Agreeing with the challengers, the court of appeals
concluded at Chevron step one that the statute unambiguously foreclosed EPA’s interpretation of
§ 7545(h)(4) and vacated the relevant section of the Final Rule. App.19a. Analogizing § 7545(h)(4) to “a scientific formula,” the court declared that the “ordinary
meaning” of “contain” is to specify a particular amount
of the identified substance (here, ethanol). App.11a12a. The court also noted that in other places Congress
had modified “contain” with phrases like “at least” or
“not less than,” such that the absence of a modifier here
“suggests that Congress intended Subsection 7545(h)(4)
4
https://growthenergy.org/2019/06/11/growth-energyamerican-drivers-reach-10-billion-miles-driven-on-e15/.
5
https://growthenergy.org/2021/03/09/growth-energyamerican-drivers-reach-20-billion-miles-on-e15/.
13
to apply [only] to E10.” App.14a. Finally, the court
reasoned that its interpretation comported with the
statute’s purpose because in “limiting the 1-psi allowance,” “Congress was balancing multiple interests.”
App.18a.
REASONS FOR GRANTING THE PETITION
I.
THE DECISION BELOW CONFLICTS WITH BASIC PRINCIPLES OF STATUTORY INTERPRETATION AS ESTABLISHED BY THIS COURT’S PRECEDENT
A. The Full Context Shows That “Containing” in
Section 7545(h)(4) Means “Having at Least”
It is a “fundamental canon of statutory construction
that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” King, 576 U.S. at 492 (quotation marks
omitted); see id. at 486. This canon is essential because
“oftentimes the meaning—or ambiguity—of certain
words or phrases may only become evident when
placed in context.” Id. at 486 (quotation marks omitted). Indeed, a “provision that may seem ambiguous in
isolation is often clarified by the remainder of the statutory scheme because only one of the permissible meanings produces a substantive effect that is compatible
with the rest of the law.” Id. at 492 (cleaned). For example, courts “cannot interpret federal statutes to negate their own stated purposes.” Id. at 493 (quotation
marks omitted). Applying these principles—which the
court of appeals failed to do faithfully—yields the conclusion that Congress used “containing gasoline and 10
percent … ethanol” to refer to fuel blends with at least
10% ethanol.
Like the word “extension” in a related provision of
the Clean Air Act, “[t]he key word here—‘[contain]’—is
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nowhere defined in the statute and it can mean different things depending on context.” HollyFrontier
Cheyenne Refin., LLC v. Renewable Fuels Ass’n, 141
S. Ct. 2172, 2176-2177 (2021). Although “contain” in
some contexts denotes “has exactly,” in other contexts
it denotes “have within,” i.e., “has at least.” Webster’s
New Collegiate Dictionary 282 (9th ed. 1990). Accordingly, one may “use[] the phrase ‘containing at least’ in
the same way—and essentially interchangeably—with
the way [one] uses the word ‘containing.’” Waters
Corp. v. Agilent Techs. Inc., 2019 WL 6255181, at *4 (D.
Del. Nov. 22, 2019). For instance, § 7545 itself uses
“contains the applicable volume” and “contains at least
the applicable volume” equivalently, 42 U.S.C.
§ 7545(o)(2)(A)(i) (emphasis added), showing that, to
Congress, the modifier “at least” need not always be
express to be present. Likewise, a Food and Drug
Administration regulation concerning statements on
juice labels requires that beverages labeled as “containing 10% juice” contain at least 10% juice. 21 C.F.R.
§ 101.30(b)(1). Tellingly, again much like “extension” in
HollyFrontier, neither the court of appeals nor the
challengers have “point[ed] to a single dictionary definition of the term ‘[contain]’ requiring” that there be
exactly the specified amount. HollyFrontier, 141 S. Ct.
at 2177.
The broader statutory structure and purpose make
clear that, for purposes of § 7545(h)(4), Congress used
“containing” to mean “having at least.”
Congress titled § 7545(h)(4) “Ethanol waiver” and
expressly made it available to “fuel blends containing”
gasoline and 10% ethanol. Had Congress intended to
restrict the waiver to a single blend (E10), Congress
could have easily used much more direct language, ti-
15
tling the provision “E10 waiver” and making it available to “E10” or to “the blend containing” gasoline and
10% ethanol. “[T]he heading of a section [is a] tool[]
available for the resolution of a doubt about the meaning of a statute.” Porter v. Nussle, 534 U.S. 516, 528
(2002) (quotation marks omitted). Here, § 7545(h)(4)’s
“unqualified heading scarcely aids the [court of appeals’
view] that Congress meant to bi-sect the universe of”
ethanol blends and restrict the waiver to E10. Id. And
Congress’s use of the plural “blends” of gasoline and
ethanol in the waiver provision closes the door on the
lower court’s interpretation, making crystal clear that
Congress intended that the waiver be available not to a
single ethanol blend but to any fuel blend whose ethanol concentrations is 10% or greater.
Further, Congress’s aims are served only by interpreting § 7545(h)(4) to reach higher-ethanol blends.
The Clean Air Act broadly facilitates the use of new
fuels and concentrations thereof as long as they meet
the minimum requirements to protect against harmful
emissions. See, e.g., 42 U.S.C. § 7545(f). Section 7545(h)
furthers these goals in a specific context: volatility during the summer season. Section 7545(h)(4) itself embodies these twin objectives, allowing a waiver of the
RVP limit for ethanol-based “fuel blends”—so that such
blends can be used during the summer season—but only up to 1 psi more. Id. § 7545(h).
Section 7545(h)(4)’s evident purpose is also revealed in its legislative history. Congress recognized
that “volatility reductions” were “necessary to protect
public health and welfare,” but also “recognize[d] that
to require ethanol to meet a 9 pound RVP” would “likely result in the termination of the availability of ethanol
in the marketplace,” given the “prohibitive” “cost of
producing and distributing” ethanol blends whose RVP
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is 9 psi (or less) in the summer. S. Rep. No. 101-228, at
110. Consequently, Congress created the “ethanol
waiver” to “allow ethanol blending to continue to be a
viable alternative fuel, with its beneficial environmental, economic, agricultural, energy security and foreign
policy implications.” Id.
Congress’s objectives are satisfied only by interpreting “containing” to mean “having at least”—and
thus permitting the 1-psi waiver to apply to E15. This
interpretation facilitates increased use of ethanol, and
thus promotes the many significant benefits that Congress sought to achieve, without increasing fuel volatility above the level Congress already determined is acceptable. Under this interpretation, E15 (and other
higher-ethanol blends) could be sold year-round, enabling the introduction of more ethanol into the nation’s
transportation-fuel supply. And those fuel blends could
be sold year-round only if they satisfy the emissions requirements of § 7545(f) and only if their volatility remains within the specific limit Congress deemed acceptable in the ethanol waiver provision of
§ 7545(h)(4)—the very same limit that applies to E10.
In contrast, the court of appeals’ contrary interpretation ascribes to Congress a bizarre intent: to promote
increased ethanol use while guarding against evaporative emissions by specifying a fixed RVP limit, and yet
to allow only a single blend whose concentration of ethanol is relatively low, just 10%, to be sold, even if a
higher-ethanol blend meets the same fixed RVP limit.
And further, the court of appeals’ interpretation implies
that Congress intended this outcome even though Congress understood at the time that the RVP of higherethanol blends would be lower than the RVP of E10.
See App.18a; CAJA485 (citing CAJA424). In short, on
the court of appeals’ view, Congress intended to pro-
17
mote ethanol use while limiting volatility by foreclosing
fuel blends that use more ethanol and have no greater—
but in fact lower—RVP than E10 from the market for
more than one-third of the year, dampening the market’s incentive to invest in such blends’ wider adoption.
Courts may not attribute such an absurd or bizarre
intent to Congress absent clear evidence, and as discussed, there is no such evidence. Nixon, 541 U.S. at
138 (rejecting interpretation that implies “farfetched”
congressional intent or “leads to absurd … results”);
Caron v. United States, 524 U.S. 308, 315 (1998) (“Congress cannot have intended this bizarre result.”); Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 799 (1985)
(“In the absence of any indication in the legislative history or persuasive functional argument to the contrary,
we cannot assume that Congress intended to create
such a bizarre jurisdictional patchwork.”).
On the contrary, Congress consciously rejected a
version of the ethanol-waiver provision that would have
expressly confined the waiver to E10. The original
draft of the bill provided a 1-psi allowance only for
“gasoline containing at least 9 but not more than 10 per
centum ethanol (by volume).” H.R. 3030, 101st Cong.
§ 214 (1989) (CAJA114-115) (emphasis added); S. 1490
101st Cong. § 214 (1989). The House and Senate both
rejected that phrasing. This “drafting history showing
that Congress cut out [specific] language … from the
final statute … precludes any hope of a sound interpretation” that would restore the “trimmed” language, as
the court of appeals’ interpretation would. Doe v.
Chao, 540 U.S. 614, 622-623 (2004); see also, e.g.,
Hamdan v. Rumsfeld, 548 U.S. 557, 579-580 (2006)
(“Congress’ rejection of the very language that would
have achieved the result” favored by the court of appeals “weighs heavily against [that] interpretation.”).
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Finally, the second clause of § 7545(h)(4)—which
the court of appeals ignored—confirms that Congress
did not intend to restrict the 1-psi ethanol waiver to
E10. As discussed above, that clause deems downstream participants compliant with the 9-psi RVP limit
of § 7545(h)(1) if “the ethanol portion of the blend does
not exceed its waiver condition under subsection (f)(4).”
42 U.S.C. § 7545(h)(4)(B). And § 7545(f)(4) is not limited to E10; indeed, EPA has granted a waiver to E15
under § 7545(f)(4). Supra p.10. Thus, Congress determined that market participants can be deemed compliant for using ethanol blends whose RVP exceeds 9 psi.
Surely, Congress would not have done that had it intended the ethanol waiver’s 1-psi allowance not to apply to those same blends.
B. The Court Below Incorrectly Held That Congress Intended “Containing” to Mean “Having Exactly”
The court of appeals erroneously determined that
the phrase “containing … 10 percent … ethanol” in
§ 7545(h)(4) unambiguously means “containing exactly
10% ethanol” and therefore that the ethanol waiver applies only to E10.
The court brushed aside § 7545(h)(4)’s aim of promoting ethanol while capping volatility, stating vaguely
that “Congress was balancing multiple interests” and
giving “attention to wide-ranging economic, energysecurity, and geopolitical implications.” App.18a. Although Congress was indeed considering those interests, the court never explained how any of them would
have led Congress to confine the ethanol waiver to
E10. Nor could the court have done so because, as explained, Congress understood that those broader interests are served by increased ethanol use—such as
19
through E15—rather than through RVP limits, which
(if set at 9 psi) hinder the availability of ethanol blends.
See supra p.9-10. The sole purpose served by the statute’s RVP limits is to limit RVP, and that purpose is
served regardless of the ethanol concentration of a given blend because the statute’s RVP limits, including in
the ethanol waiver, are the same irrespective of the
blend’s ethanol concentration.
Further, the court’s textual analysis begged the
question. It stated that the word “contain” means “‘to
have within,’ ‘to hold,’ or ‘to comprise’ in a manner that
‘implies the actual presence of a specific substance or
quantity within something.’” App.12a-13a. From that
definition, the court reasoned, “Subsection 7545(h)(4) is
best read to concern gasoline that ‘has within it’ or
‘holds’ a specific quantity (10%) of a specific substance
(ethanol).” App.13a. But the court’s preferred dictionary definition of “contains” does not support its conclusion that the statute unambiguously requires that the
fuel blend have exactly 10% ethanol. E15 also “has
within it” or “holds” a “specific substance”—ethanol—
and in particular has, or holds, 10% of that substance
within it, and then some.
The court also overread other provisions of the
Clean Air Act. The court said, “Numerous provisions
of the Clean Air Act … have percentages with modifiers,” such as “at least 85 percent methanol,” while
§ 7545(h)(4) does not. App.13-14a (quotation marks
omitted). “But none of that means the bare term ‘[containing]’ obviously and always includes a strict … requirement” that the exact amount of ethanol specified
is present. HollyFrontier, 141 S. Ct. at 2179. Indeed,
as noted, § 7545(o)(2)(A)(i) confirms that sometimes the
Clean Air Act uses “contain [specified amount]” to
mean “has at least” without including an express modi-
20
fier. See supra p.14. And sometimes Congress attaches an express modifier to “contain” to articulate not a
floor but “exactly,” as in “a mixture of alternative fuel
and gasoline or diesel fuel containing exactly 50 percent
gasoline or diesel fuel,” 49 U.S.C. § 32901(a)(9)(C). This
fuller accounting of the ways Congress uses “contain”
shows that the word standing alone does not have a
uniform or single meaning.
More broadly, this accounting is a reminder that
the Clean Air Act “is far from a chef d’oeuvre of legislative draftsmanship,” and thus that courts (and EPA)
“must … bear[] in mind the fundamental canon of statutory construction that the words of a statute must be
read in their context and with a view to their place in
the overall statutory scheme.” Utility Air Regulatory
Grp. v. EPA, 573 U.S. 302, 319-320 (2014) (quotation
marks omitted). Accordingly, “the presumption of consistent usage readily yields to context.” Id. (quotation
marks omitted). And here, as explained above, the context and overall statutory scheme compel the conclusion that the ethanol waiver in § 7545(h)(4) is available
for all blends with at least 10% ethanol.
C. At Most, the Statute Is Ambiguous and EPA’s
Interpretation Is Reasonable
Even if it were not clear that Congress intended
“containing” 10% ethanol to mean “having at least” 10%
ethanol in § 7545(h)(4), the statutory provision would at
most be ambiguous, and EPA’s interpretation would be
a reasonable resolution of that ambiguity entitled to
deference—for all the same reasons discussed above.
See King, 576 U.S. at 486 (“oftentimes the … ambiguity
… of certain words or phrases may only become evident when placed in context” (quotation marks omitted)); City of Arlington, Tex. v. FCC, 569 U.S. 290, 296
21
(2013) (“Statutory ambiguities will be resolved, within
the bounds of reasonable interpretation, not by the
courts but by the administering agency.”).
II. THE DECISION BELOW WILL HAVE EXCEPTIONALLY
IMPORTANT CONSEQUENCES
The decision below will have exceptionally important consequences for the nation’s transportation
fuel supply—and in turn for the economy, human
health, the environment, and security.
Replacing some gasoline with ethanol in the nation’s transportation-fuel supply brings many benefits.
It promotes U.S. energy security and national security
by diversifying the country’s energy sources and rebalancing the country’s energy trade, because it entails
switching from a fuel that is, to a significant degree,
imported to a fuel that is produced domestically. CAJA246; CAJA266. It spurs economic development in
the rural areas that grow and convert corn to ethanol.
CAJA031; CAJA328; CAJA266. It improves human
health, national security, and the environment because
ethanol reduces greenhouse gas emissions by more
than 40% compared to the gasoline it replaces. See CAJA328. And it provides necessary gasoline octane. Id.
Indeed, Congress created the Renewable Fuel Standard program “to force the market to create ways to
produce and use greater and greater volumes of renewable fuel”—especially ethanol, by far the most
widely used renewable fuel—in the nation’s transportation-fuel supply annually. Americans for Clean Energy
v. EPA, 864 F.3d 691, 696-697, 710 (D.C. Cir. 2017); see
42 U.S.C. § 7545(o).
E15 enhances these benefits of replacing some gasoline with ethanol relative to E10 because E15 uses
22
50% more ethanol than E10. Moreover, because E15’s
RVP is lower than E10’s, using E15 reduces evaporative emissions, which harm human health and the environment. See supra pp.6-7.
The decision below effectively bars E15 use during
the summer, substantially reducing the benefits the
country could receive from ethanol. But the decision’s
harmful consequences are much greater than that. E15
was poised to grow significantly and potentially to
begin replacing E10 as the default year-round transportation fuel, supercharging the benefits of replacing
some gasoline with ethanol. About 95% of the national
vehicle fleet can safely use E15. Air Improvement Resource, Inc., Analysis of Ethanol-Compatible Fleet for
Calendar Year 2021, at 2 (Nov. 9, 2020).6 During the
three years in which the Final Rule was in effect, the
number of retail stations selling E15 increased from
about 1,300 (according to EPA), CAJA007, to almost
2,500, Growth Energy, E15 Rapidly Moving into the
Marketplace (July 6, 2021).7 And in those few pandemic-affected years, drivers logged as many miles on E15
as they had in the previous 10 years combined. Supra
p.11-12. And the availability of E15-compatible vehicles and infrastructure will rapidly approach 100% because all new vehicles, pumps, and storage tanks are
E15-compatible, and retail stations naturally upgrade
their pumps and tanks roughly every seven years.
Stillwater Associates LLC, Infrastructure Changes
and Cost to Increase Consumption of E85 and E15 in
2017, at 19 (July 11, 2016) (attached as Ex. 16 to Growth
6
https://growthenergy.org/wp-content/uploads/2020/11/Analy
sis-of-Ethanol-Compatible-Fleet-for-Calendar-Year-2021-Final.pdf.
7
https://growthenergy.org/wp-content/uploads/2021/07/e15stations-2462-2021-07-06.pdf.
23
Energy Comments on EPA’s Proposed Renewable
Fuel Standard Program: Standards for 2019 and Biomass-Based Diesel Volume for 2020 (Aug. 17, 2018),
EPA Dkt. # EPA-HQ-OAR-2018-0167-1292).8
The market, therefore, could well begin to favor
E15 as the default fuel because of its higher octane rating, lower cost, and greater ability to satisfy requirements under the Renewable Fuel Standard program.
The primary barrier to this switch was EPA’s prior
volatility regulations, which EPA tried to remedy with
the Final Rule. The decision below entrenches that
regulatory barrier, ensuring that E15 will not supplant
E10 as the nation’s default fuel, to the country’s great
misfortune.
III. THIS CASE PRESENTS AN IDEAL—INDEED, THE
ONLY—VEHICLE TO RESOLVE THIS CRITICAL ISSUE
The decision below is unencumbered by alternative
holdings or jurisdictional concerns. Thus, this petition
presents an ideal vehicle for this Court to address the
question presented and avert the enormous harmful
consequences of the decision below.
More importantly, this case will be the Court’s only
opportunity to do so. Because the court of appeals held
that the statute is unambiguous at Chevron step one,
its decision forever forecloses EPA from re-adopting its
interpretation. And no other court can ever address
the issue because the D.C. Circuit has exclusive jurisdiction over this issue.9 Therefore, there is no possibil8
https://www.regulations.gov/document/EPA-HQ-OAR-20180167-1292.
9
The Clean Air Act grants the D.C. Circuit exclusive jurisdiction over challenges to “any control or prohibition under section
24
ity of further percolation, a circuit split, or even a future decision from the D.C. Circuit that this Court
could review. If this Court does not hear this case, the
current presidential administration and all future ones
will be bound by the decision below. This Court regularly reviews decisions on EPA actions under the Clean
Air Act despite the lack of a circuit split. E.g., Michigan v. EPA, 576 U.S. 743 (2015); EPA v. EME Homer
City Generation, L.P., 572 U.S. 489 (2014); Utility Air,
573 U.S. 302; see also HollyFrontier, 141 S. Ct. 2172.
The Court should do so here.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
ETHAN G. SHENKMAN
JONATHAN S. MARTEL
WILLIAM C. PERDUE
ARNOLD & PORTER KAYE
SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001
(202) 942-5000
SETH P. WAXMAN
Counsel of Record
DAVID M. LEHN
CARY A. GLYNN
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
(202) 663-6000
seth.waxman@wilmerhale.com
OCTOBER 2021
7545” or to “any other nationally applicable regulations promulgated, or final action taken, by [EPA] under” § 7545. 42 U.S.C.
§ 7607(b)(1). Section 7545(h) expressly involves a “[p]rohibition,”
id. § 7545(h)(1), and the Final Rule is a nationally applicable regulation promulgated under § 7545.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.