Respondents Brief — Growth Energy, Petitioner v. American Fuel & Petrochemical Manufacturers, et al.

No. 21-519

In 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

U.S. Court of Appeals for the D.C. Circuit

_______________

BRIEF OF RESPONDENTS

URBAN AIR INITIATIVE, INC., ET AL.,

IN SUPPORT OF THE PETITION

FOR A WRIT OF CERTIORARI

_______________

C. BOYDEN GRAY

Counsel of Record

JONATHAN BERRY

JORDAN E. SMITH

BOYDEN GRAY &

ASSOCIATES

801 17th St. NW, #350

Washington, DC 20006

(202) 955-0620

info@boydengray

associates.com

CORPORATE DISCLOSURE STATEMENT

Urban Air Initiative, Inc. (UAI) is a social welfare

organization dedicated to educating the public about

the health threats posed by domestic use of

petroleum-based fuels. UAI has no parent companies,

and no publicly held company has a 10% or greater

ownership interest in UAI.

The Farmers’ Educational & Cooperative Union

of America, d/b/a National Farmers Union, is a Texas

nonprofit agricultural organization. It has no parent

companies, and no publicly held company has a 10%

or greater ownership interest in National Farmers

Union.

Farmers Union Enterprises, Inc., is a Minnesota

corporation that oversees a diverse portfolio of farmrelated businesses, including fuel ethanol plants. It

has no parent companies, and no publicly held

company has a 10% or greater ownership interest in

Farmers Union Enterprises.

Big River Resources, LLC is an Iowa holding

company with various subsidiaries currently engaged

in the production of fuel ethanol. It has no parent

companies. Farmers Energy Big River, LLC has a 10%

or greater ownership interest in Big River Resources.

Glacial Lakes Energy, LLC is wholly owned by

the Glacial Lakes Corn Processors. Glacial Lakes

Corn Processors is a South Dakota cooperative with

4,100 shareholder/investors who reside primarily in

eastern South Dakota. No publicly held company has

a 10% or greater ownership interest in Glacial Lakes

Energy, LLC.

ii

Clean Fuels Development Coalition (CFDC) is a

business league organization. It has no parent

companies, and no publicly held company has a 10%

or greater ownership interest in CFDC.

Fagen, Inc., is a Minnesota industrial

construction company whose projects include

biorefineries engaged in the production of fuel

ethanol. It has no parent companies, and no publicly

held company has a 10% or greater ownership interest

in Fagen, Inc.

Jackson Express, Inc., is a fuel retailer and

convenience store organized under the laws of

Nebraska. It has no parent companies, and no publicly

held company has a 10% or greater ownership interest

in Jackson Express, Inc.

Jump Start Stores, Inc., is a fuel retailer and

convenience store organized under the laws of

Kansas. It has no parent companies, and no publicly

held company has a 10% or greater ownership interest

in Jump Start Stores, Inc.

Little Sioux Corn Processors, LLC is an Iowa

renewable fuel producer. Little Sioux Corn

Processors, LLC has no parent companies. Little

Sioux Corn Processors, LLC owns the sole general

partnership interest of LSCP, LLLP. Archer Daniels

Midland Company, a publicly held company, has a

10% or greater ownership interest in LSCP, LLLP.

South Dakota Farmers Union is a nonprofit

organization that works to promote the interests of

South Dakota farmers. It has no parent companies,

and no publicly held company has a 10% or greater

ownership interest in South Dakota Farmers Union.

iii

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ............ i

RESPONSE IN SUPPORT OF CERTIORARI.......... 1

1

RESPONSE IN SUPPORT OF CERTIORARI

Respondents Urban Air Initiative, Inc., et al.,

agree with petitioner that a writ of certiorari should

be granted.

This case is about Clean Air Act § 211(h)(4), a

volatility allowance for certain fuel blends containing

ethanol. 42 U.S.C. § 7545(h)(4). The Clean Air Act

limits the volatility of gasoline fuels, but a small 1pound-per-square-inch

volatility

allowance

is

available for all “fuel blends containing gasoline and

10 percent . . . ethanol.” Id. While ethanol has a very

low volatility, mixing a small quantity of ethanol with

gasoline causes a small increase in the fuel’s

volatility. A small allowance is therefore needed to

enable the sale of fuel blends with 10 percent or more

ethanol in all areas subject to § 211(h)—most of the

country.

The Court of Appeals below construed § 211(h)(4)

to authorize a fuel volatility allowance only for fuel

blends containing only gasoline and 9 to 10 percent

ethanol, a blend known as “E10.” The Court of

Appeals read the statute as a precise “scientific

formula” for E10— a set of “instructions directing the

preparation of the solution.” [Op. at 12–13]. As

explained by petitioner, that construction is

inconsistent with text and statutory purpose. It would

also increase fuel volatility, create an impractical

regulatory barrier for the sale of renewable fuel

volumes required by law, and wreak havoc on fuel

retailers that have invested in equipment to sell

gasoline with more than 10 percent ethanol (E15). For

these reasons, respondents support the petition for

certiorari.

2

Respectfully submitted,

C. BOYDEN GRAY

Counsel of Record

JONATHAN BERRY

JORDAN E. SMITH

BOYDEN GRAY &

ASSOCIATES

801 17th St. NW, #350

Washington, DC 20006

(202) 955-0620

info@boydengray

associates.com

October 25, 2021