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.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

TODD KIM

Assistant Attorney General

PERRY M. ROSEN

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether a provision of the Clean Air Act, 42 U.S.C.

7401 et seq., that eases seasonal volatility limitations for

“fuel blends containing gasoline and 10 percent * * *

ethanol,” 42 U.S.C. 7545(h)(4), applies to fuel blends

that contain gasoline and 15 percent ethanol.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States Court of Appeals (D.C. Circuit):

American Fuel & Petrochemical Manufacturers v.

EPA, No. 19-1124 (July 2, 2021)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 6

Conclusion ................................................................................... 14

TABLE OF AUTHORITIES

Cases:

Barnhart v. Sigmon Coal Co., 534 U.S. 438 (2002) .............. 9

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009).............................................................. 10

HollyFrontier Cheyenne Ref., LLC v. Renewable

Fuels Ass’n, 141 S. Ct. 2172 (2021) ................................. 2, 9

Loving v. IRS, 742 F.3d 1013 (D.C. Cir. 2014) ................... 10

Statutes and regulation:

Clean Air Act, 42 U.S.C. 7401 et seq. ..................................... 2

42 U.S.C. 7545 ...................................................... 2, 4, 9, 13

42 U.S.C. 7545(f )(1) ............................................. 2, 4, 6, 13

42 U.S.C. 7545(f )(4) ................................................. 2, 4, 14

42 U.S.C. 7545(h) ........................................................... 2, 5

42 U.S.C. 7545(h)(1) .......................................................... 2

42 U.S.C. 7545(h)(1)-(2)..................................................... 3

42 U.S.C. 7545(h)(4) ............................................... passim

42 U.S.C. 7545(h)(5)(A) ................................................... 13

42 U.S.C. 7545(k) ............................................................... 3

42 U.S.C. 7545(o)(2)(A)(i).................................................. 9

42 U.S.C. 7554(c)(2)(A) ..................................................... 5

42 U.S.C. 7607(b) ......................................................... 4, 10

40 C.F.R. 1090.80 ..................................................................... 2

(III)

IV

Miscellaneous:

Page

Consumer and Fuel Retailer Choice Act, S. 2339,

117th Cong., 1st Sess. (2021) ............................................. 14

56 Fed. Reg. 64,704 (Dec. 12, 1991) ....................................... 3

84 Fed. Reg. 26,980 (June 10, 2019) ........................... 4, 11, 12

Growth Energy, Expanding the Market for Ethanol

at Home and Abroad, https://growthenergy.org/

choice-at-the-pump/expanding-the-market-forethanol-at-home-and-abroad (last visited Dec. 7,

2021) ..................................................................................... 12

U.S. Dep’t of Agriculture, Biofuel Infrastructure

Partnership, https://www.fsa.usda.gov/programsand-services/energy-programs/bip/index (last visited Dec. 7, 2021) ................................................................. 12

Year-Round Fuel Choice Act of 2021, H.R. 4410,

117th Cong., 1st Sess. (2021) ............................................. 14

In the Supreme Court of the United States

No. 21-519

GROWTH ENERGY, PETITIONERS

v.

AMERICAN FUEL & PETROCHEMICAL

MANUFACTURERS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-19a)

is reported at 3 F.4th 373.

JURISDICTION

The judgment of the court of appeals was entered on

July 2, 2021. Petitions for rehearing were denied on

September 9, 2021 (Pet. App. 21a-24a). The petition for

a writ of certiorari was filed on October 4, 2021. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

In October 2018, the President directed the Environmental Protection Agency (EPA) to initiate a rulemaking to consider easing summertime regulatory standards for gasoline containing up to 15% ethanol (E15).

(1)

2

Pet. App. 1a-2a. In June 2019, EPA issued a rule adopting such changes. Id. at 2a. Several challengers filed

petitions for review. Id. at 7a. Other groups, including

petitioner, intervened to defend the rule. Id. at 11a.

The court of appeals vacated the challenged portion of

the rule. Id. at 2a.

1. The Clean Air Act (CAA), 42 U.S.C. 7401 et seq.,

establishes various requirements and limitations pertaining to the content of motor fuel. 42 U.S.C. 7545; see,

e.g., HollyFrontier Cheyenne Ref., LLC v. Renewable

Fuels Ass’n, 141 S. Ct. 2172, 2175 (2021). One limitation

is that no fuel or fuel additive may be introduced into

commerce unless it is either “substantially similar to” a

fuel or fuel additive certified for use in vehicles or engines after model year 1975, 42 U.S.C. 7545(f )(1), or is

the subject of a waiver granted by EPA, 42 U.S.C.

7545(f )(4). In 1979, EPA granted a waiver for gasoline

containing up to 10% ethanol (E10). Pet. App. 5a. In

2010 and 2011, EPA granted a waiver for the use of E15,

subject to certain conditions. Ibid.

The CAA also imposes limits on fuel volatility, which

at high levels can generate large amounts of ozone, particularly during the summer. 42 U.S.C. 7545(h); see

Pet. App. 3a-4a. Of particular relevance here, the CAA

directs EPA to issue regulations making it unlawful

during the summer season to sell or supply gasoline

with a volatility—measured by Reid Vapor Pressure

(RVP)—above 9.0 pounds per square inch (psi). 42

U.S.C. 7545(h)(1); see 40 C.F.R. 1090.80 (defining the

summer season). The CAA creates an exception to that

limit for “fuel blends containing gasoline and 10 percent

* * * ethanol.” 42 U.S.C. 7545(h)(4). For fuels within

that exception, the volatility limit “shall be one [psi]

greater than the” otherwise-applicable limit established

3

by EPA. Ibid. Thus, while summertime volatility for

most fuels is limited to 9.0 psi, “fuel blends containing

gasoline and 10 percent * * * ethanol” may have a volatility of up to 10.0 psi during that portion of the year.

Ibid.; see Pet. App. 4a-5a. 1

2. For nearly 30 years, EPA interpreted the phrase

“fuel blends containing gasoline and 10 percent * * *

ethanol,” 42 U.S.C. 7545(h)(4), to apply to fuels containing gasoline and 9-10% ethanol—i.e., E10, with a small

margin for some measurement uncertainty, see 56 Fed.

Reg. 64,704, 64,710 (Dec. 12, 1991); Pet. App. 5a-6a. Under that interpretation, E15 did not qualify for the 1-psi

summertime allowance in Section 7545(h)(4) and was accordingly subject to the default summertime volatility

limit of 9.0 psi. Pet. App. 5a-6a. In addition, that 9.0 psi

summertime volatility limit was a condition of the waivers that EPA granted allowing the use of E15 in 2010

and 2011. See ibid.; p. 2, supra. Because it is considerably more costly to produce ethanol blends with volatility not exceeding 9.0 psi, E15 generally was not sold

during the summer months. Pet. App. 6a.

In October 2018, the President directed EPA to initiate a rulemaking to consider modifying the volatility

limits for E15 to make it easier for E15 to be lawfully

sold throughout the year. Pet. App. 6a. In June 2019,

EPA promulgated a rule that adopted such modifi1 The CAA establishes lower volatility limits in areas deemed to

be in nonattainment with the National Ambient Air Quality Standards. See 42 U.S.C. 7545(h)(1)-(2); Pet. App. 4a-5a. The CAA also

establishes different volatility limits in areas that use reformulated

gasoline. See 42 U.S.C. 7545(k). As discussed further below, there

is no practical barrier to the summertime use of E10 or E15 in reformulated-gasoline areas because the gasoline blendstock used in

those areas can produce E10 and E15 blends that fall below the applicable volatility limit without any need for an extra allowance.

4

cations. 84 Fed. Reg. 26,980, 26,981-26,982 (June 10,

2019) (E15 rule). EPA concluded that the statutory reference to “fuel blends containing gasoline and 10 percent * * * ethanol,” 42 U.S.C. 7545(h)(4), is ambiguous

and can reasonably be interpreted to encompass fuel

blends that contain gasoline and at least 10% ethanol,

see 84 Fed. Reg. at 26,992; Pet. App. 6a-7a. EPA separately concluded that, when used in model year 2001 and

newer light-duty vehicles, E15 is “substantially similar”

to E10 and accordingly could be introduced into commerce pursuant to 42 U.S.C. 7545(f )(1), thereby removing the obstacle created by the conditions in the waivers

granted under 42 U.S.C. 7545(f )(4). Those regulatory

changes together allowed E15 to be sold at a volatility

of 10.0 psi during the summer. See Pet. App. 7a.

3. Three groups of challengers filed petitions for review of the E15 rule in the D.C. Circuit. Pet. App. 7a;

see 42 U.S.C. 7607(b) (vesting the D.C. Circuit with exclusive jurisdiction over petitions for review of certain

EPA actions under Section 7545). A group of biofuel

groups including Growth Energy (petitioner in this

Court) intervened to defend the rule. Pet. App. 11a. The

court of appeals concluded that at least one challenger

—a trade association representing manufacturers of petroleum fuels that compete with E15—had standing to

challenge the rule. Id. at 8a-10a.

On the merits, the court of appeals concluded that

the E15 rule exceeded EPA’s authority under Section

7545(h)(4). Pet. App. 10a-18a. The court determined

that the phrase “containing gasoline and 10 percent

* * * ethanol,” 42 U.S.C. 7545(h)(4), unambiguously

“refers to E10”—i.e., a fuel blend containing gasoline

and 10% ethanol (allowing for a compliance margin),

and does not encompass a blend (like E15) that contains

5

gasoline and more than 10% ethanol, Pet. App. 12a. The

court based its conclusion on “dictionary definitions”

and “ordinary meaning,” both of which the court understood as limiting the statutory phrase to the “specific

quantity” of 10% ethanol. Id. at 12a-13a. The court also

observed that other CAA provisions use modifiers like

“at least” to designate a minimum quantity or percentage, id. at 13a (quoting 42 U.S.C. 7554(c)(2)(A)), and it

inferred that Congress likely would have used similar

language if it had intended that Section 7545(h)(4)

would encompass blends like E15, see ibid. The court

found further support for its interpretation in the statutory history, which the court read to suggest that Section 7545(h) had codified EPA’s prior regulatory framework, which had limited summertime volatility to 9 psi

for most fuels while allowing fuels containing 9-10% ethanol to have a volatility of 10 psi. Id. at 14a-15a. The

court also observed that EPA had read Section 7545(h)

in that way for decades. Id. at 15a-16a.

The court of appeals rejected the counterarguments

advanced by EPA and the intervenors. Pet. App. 16a18a. The court agreed that in some contexts the term

“containing” can mean “containing at least” a specified

amount, but it viewed the context of Section 7545(h)(4)

as unambiguously foreclosing that reading. Id. at 16a

(citations omitted). The court found no inconsistency

between its interpretation of “containing … 10 percent”

and the unchallenged understanding that Section

7545(h)(4) encompasses blends containing between 9

and 10% ethanol. Ibid. In the court’s view, allowing

that 1% buffer was simply “recognizing some compliance margin.” Ibid. The court also rejected EPA’s and

the intervenors’ reliance on the legislative history,

which the court found ambiguous. Id. at 17a-18a. The

6

court recognized that allowing broader use of E15 could

be viewed as consistent with an important statutory

purpose, but it concluded that Section 7545(h)(4) “reflects a compromise, not simply a desire to maximize

ethanol production at all costs.” Id. at 18a.

Because the court of appeals found that the challenged portion of the rule was inconsistent with Section

7545(h)(4), it did not address the challengers’ separate

argument that the rule exceeded the agency’s authority

under Section 7545(f )(1). See Pet. App. 19a.

ARGUMENT

The central question in this case is whether the

CAA’s reference to fuel blends “containing gasoline and

10 percent * * * ethanol,” 42 U.S.C. 7545(h)(4), can reasonably be interpreted to encompass fuel blends that

contain more than 10% ethanol. Although EPA offered

sound arguments in defense of its position below, the

court of appeals examined Section 7545(h)(4)’s text and

history and reached a different conclusion. The D.C.

Circuit’s holding does not conflict with any decision of

this Court or any other court, and it has limited legal

and practical consequences. As a legal matter, the effect of the decision below is to restore the interpretation

of Section 7545(h)(4) that EPA maintained for most of

the past three decades. And as a practical matter, a

number of economic, logistical, and administrative barriers unrelated to the rule at issue here independently

impede the widespread use of E15. This Court’s review

is not warranted.

1. As petitioner appears to accept (Pet. 23), the D.C.

Circuit’s holding does not conflict with any decision of

this Court or another court of appeals. Petitioner contends (Pet. 4, 13) that the court below departed from this

Court’s general statutory-interpretation principles.

7

Petitioner’s principal argument (Pet. 13-20) is that, read

in its statutory context, Section 7545(h)(4)’s reference

to “fuel blends containing gasoline and 10 percent * * *

ethanol,” 42 U.S.C. 7545(h)(4), unambiguously encompasses all blends that contain at least 10% ethanol. But

the unanimous D.C. Circuit panel applied well-settled

principles of statutory interpretation to reach its contrary conclusion. Although EPA argued that the statute is ambiguous and permits the agency’s reasonable

construction, EPA did not contend —and no valid argument suggests—that the statute requires petitioner’s

interpretation. And even if petitioner’s argument that

the statute is unambiguous had greater force, it would

still amount to a request for error correction with respect to the interpretation of a single CAA provision.

Petitioner accordingly fails to establish a sound basis

for this Court’s review.

a. The court of appeals correctly began its analysis

with the statutory text. Pet. App. 11a-13a. The court

determined that both ordinary meaning and dictionary

definitions indicate that the key statutory phrase—

“fuel blends containing gasoline and 10 percent * * *

ethanol,” 42 U.S.C. 7545(h)(4)—refers only to E10. Pet.

App. 12a. The court compared the statutory language

to a wine label stating that a bottle “ ‘contains 10% alcohol by volume,’” which the court stated would commonly

be understood as “a literal statement of the actual

amount of alcohol in a serving.” Ibid. The court also

cited dictionaries defining “contain” to mean “to have

within” or to “hold” a “specific substance or quantity.”

Id. at 12a-13a (citations omitted). In the court’s view,

those definitions indicated that the statutory language

“is best read to concern gasoline” with “a specific quantity (10%)” of ethanol. Id. at 13a.

8

Some reasonable arguments weigh against the court

of appeals’ conclusion. As the court recognized later in

its opinion, a speaker of ordinary English might well use

the formulation “containing [a particular percentage]”

to mean that an item contains at least the specified percentage. See Pet. App. 16a (acknowledging that a statement that a “patient’s blood must ‘contain 10% white

blood cells’ ” to repel infections would be understood to

mean that the blood must contain “at least 10% white

blood cells”) (quoting Gov’t C.A. Br. 40). And EPA’s

reading of the statute is not clearly inconsistent with

the dictionary definitions the court credited, because

E15 does “ha[ve] within it” or “hold[]” 10% ethanol,

even though it contains additional ethanol as well. Id.

at 13a. Just as Section 7545(h)(4) does not include the

words “at least,” it likewise does not refer explicitly to

fuel blends containing “only” or “precisely” 10% ethanol. EPA thus reasonably understood ordinary meaning and dictionary definitions to show ambiguity about

the scope of the challenged statutory phrase.

The court of appeals’ contrary conclusion, however,

did not rest on any dispute about appropriate methods

of statutory interpretation; it turned only on the application of those methods to the particular statutory language (and overall statutory scheme) at issue here.

And, contrary to petitioners’ principal argument in this

Court, applying those accepted methods does not support the conclusion that Section 7545(h)(4) unambiguously encompasses fuel blends that contain more than

10% ethanol. Neither ordinary meaning nor dictionary

definitions suggest that references to substances “containing” a specified amount of a particular component

always encompass substances that contain more than

the specified amount. Pet. App. 16a (citation omitted);

9

cf. HollyFrontier Cheyenne Ref., LLC v. Renewable

Fuels Ass’n, 141 S. Ct. 2172, 2178-2179 (2021) (explaining that the word “extension” in another provision of

Section 7545 has multiple possible meanings).

b. The court of appeals, moreover, did not rely on its

reading of the statutory text alone. The court appropriately proceeded to assess the statutory context, history,

and purpose. See Pet. App. 13a-18a. The court noted

that other fuel-regulation provisions, other legislation

addressing ethanol fuel blends, and proposed drafts of

Section 7545(h)(4) all contained language that would

have clearly incorporated the “at least 10 percent”

meaning that the E15 rule ascribed to the disputed statutory language. Id. at 16a. The court then applied the

recognized principle that the “absence of such a term”

in Section 7545(h)(4) “may properly be understood as

purposeful.” Id. at 14a (citing Barnhart v. Sigmon Coal

Co., 534 U.S. 438, 452 (2002)).

Again, while the court of appeals identified well-accepted legal principles, its application of those principles to this case is open to debate. Another provision of

Section 7545 suggests that, in at least one statutory context, “contains” and “contains at least” can have the

same meaning. 42 U.S.C. 7545(o)(2)(A)(i). Congress,

moreover, rejected a proposed bill that would have expressly limited Section 7545(h)(4) to fuel blends containing “not more than” 10% ethanol. Pet. App. 17a (citation omitted). And the court of appeals acknowledged

that construing Section 7545(h)(4) to permit broader

summertime use of E15 would be consistent with a statutory purpose to permit greater ethanol use. Id. at 18a.

But while those responses call into question whether

the statute compels the court of appeals’ interpretation,

10

they do not support petitioner’s argument that the statute unambiguously supports its contrary construction.

c. The court of appeals also relied on EPA’s longstanding view that Section 7545(h)(4) applies only to

E10, and not to blends that contain more than 10% ethanol. See Pet. App. 15a-16a. It is often appropriate for

a court to take into account an agency’s prior reading of

the statute that the court is interpreting. See, e.g., Loving v. IRS, 742 F.3d 1013, 1021 (D.C. Cir. 2014) (Kavanaugh, J.) (finding “it rather telling that the [agency]

had never before maintained that it possessed this authority”). At the same time, an agency is “surely free to

change (or refine) its interpretation of a statute it administers,” so long as the revised reading is reasonable

and adequately explained. Ibid. (citing FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)).

Ultimately, the effect of the court of appeals’ holding

is to restore the interpretation of Section 7545(h)(4)

that EPA maintained for nearly three decades and that

the agency has continued to view as a reasonable construction. See Pet. App. 11a. While legitimate questions exist about the court’s conclusion that its reading

of the statute was the only permissible one, the court’s

holding was based on a thorough application of settled

statutory-interpretation principles. Absent a conflict in

authority regarding the proper interpretation of Section 7545(h)(4) itself, the court of appeals’ analysis does

not reflect any serious error in interpretive methodology that might warrant this Court’s review. 2

Petitioner observes (Pet. 5, 23-24) that the D.C. Circuit has exclusive jurisdiction over challenges to EPA rules like the E15 rule,

see 42 U.S.C. 7607(b), and that a circuit conflict regarding the rule

is accordingly not possible. This Court, however, does not grant

2

11

2. The question presented here has limited practical

significance.

a. It is undisputed that E15 may lawfully be sold

year round throughout the country; that E15 is sold in

the non-summer months throughout the country; and

that E15 is sold year round in areas (which account for

more than 30% of the domestic gasoline supply) that use

reformulated gasoline. 84 Fed. Reg. at 27,010; p. 3 n.1,

supra. The narrow issue in this case is whether E15

producers can benefit from relaxed summertime volatility controls that would make it more affordable to sell

E15 in areas that use conventional gasoline and are subject to a default volatility limit of 9.0 psi. Although that

question has economic significance to E15 producers, its

overall importance is relatively modest.

Upholding the rule at issue here would not lead to

widespread use of E15. In issuing the E15 rule, EPA

explained that, because of independent economic, administrative, and logistical barriers, the rule would “not

result in a significant expansion of E15 offered at retail

stations.” 84 Fed. Reg. at 27,009. The barriers that

EPA identified include, inter alia, the costs of upgrading fuel dispensers to ensure compatibility with E15,

which can be especially challenging for the many gas

stations that are small businesses; the logistical and financial challenges associated with distributing E15 to

areas outside the Midwest and to stations that do not

blend ethanol on site; the need for fuel retailers to

demonstrate that their underground storage tank systems are compatible with E15; and limited consumer acceptance of E15, particularly among drivers of vehicles

certiorari simply because a single circuit has exclusive jurisdiction

over a particular category of cases, and petitioner does not satisfy

the Court’s usual certiorari criteria for the reasons discussed.

12

manufactured before 2001 (which are not permitted to

use E15) and of certain later-model vehicles whose

owner’s manuals warn against using E15. Id. at 27,00927,010.

Experience under the E15 rule demonstrated that

those concerns were well-founded, because no rapid expansion of E15 usage has occurred. Petitioner asserts

(Pet. 22) that, according to its own recent analysis, the

number of retail stations selling E15 increased from

about 1300 to almost 2500 while the E15 rule was in

force. Those figures are not as probative of the rule’s

effect as petitioner suggests, 3 but even taking them at

face value, they indicate that E15 was available at less

than 2% of all fuel-retail stations. See 84 Fed. Reg. at

26,986. The growth rate of stations offering E15 while

the rule was in effect, moreover, is generally consistent

with the growth rate before the rule was adopted and

with EPA’s modest projections. See id. at 27,010.

b. In and of itself, reversing the decision below

would not allow E15 to be sold more easily during the

Petitioner’s estimate of almost 2500 stations selling E15 includes

stations that are not registered in EPA’s E15 survey program. If

that data set is used, the appropriate baseline for comparison is not

1300 stations (the number registered in EPA’s E15 survey program

in 2019) but about 1800 stations (the number of total stations selling

E15 in 2019, including those not registered in EPA’s program). See

84 Fed. Reg. at 26,986-26,987. Petitioner also ignores that the increase in stations selling E15 may be driven not only by the E15

rule, but also by funding made available through various government and private programs. See, e.g., U.S. Dep’t of Agriculture,

Biofuel Infrastructure Partnership, https://www.fsa.usda.gov/programs-and-services/energy-programs/bip/index (discussing federal

grant program); Growth Energy, Expanding the Market for Ethanol at Home and Abroad, https://growthenergy.org/choice-at-thepump/expanding-the-market-for-ethanol-at-home-and-abroad (discusing private programs to boost E15 sales).

3

13

summer in the areas of the country affected by the E15

rule. As noted above (see pp. 3-4, supra), the E15 rule

involved two separate regulatory changes: construing

Section 7545(h)(4) to encompass fuel blends containing

more than 10% ethanol, and concluding that E15 is

“substantially similar” to E10 for purposes of 42 U.S.C.

7545(f )(1). Both of those regulatory changes were challenged, and the court of appeals addressed only the

first. See Pet. App. 19a. If this Court granted certiorari

and reversed the judgment below, the court of appeals

would need to address the pending challenge to the second regulatory change, and the rule would remain in effect only if that challenge was rejected.

c. The E15 rule is not the only mechanism by which

petitioner and other supporters of E15 could seek to

promote increased use of that product. A separate CAA

provision allows a State to request that EPA remove the

additional 1-psi allowance for “all fuel blends containing

gasoline and 10 percent * * * ethanol” for any area of

the State in which the allowance “will increase emissions that contribute to air pollution.” 42 U.S.C.

7545(h)(5)(A). If EPA granted such a request, E10 and

E15 would be placed on equal footing in the affected areas, potentially prompting the development of fuel

blends that can satisfy the 9.0 psi volatility limit using

either E10 or E15—just as has occurred in areas of the

country that use reformulated gasoline. See pp. 3 n.1,

11, supra.

In addition, Congress could amend Section 7545 to

make clear that fuel blends that have a volatility of 10

psi and that contain more than 10% ethanol may be sold

during the summer. After the court of appeals issued

its decision in this case, bills were introduced in both the

House and Senate that would amend Section 7545(h)(4)

14

and Section 7545(f )(4) to extend the 1-psi volatility allowance to E15. See Year-Round Fuel Choice Act of

2021, H.R. 4410, 117th Cong., 1st Sess. § 2 (2021); Consumer and Fuel Retailer Choice Act, S. 2339, 117th

Cong., 1st Sess. § 2 (2021). Congress could respond to

the policy arguments raised by petitioner by making

those or similar legislative changes, thereby obviating

any need for this Court’s intervention.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

TODD KIM

Assistant Attorney General

PERRY M. ROSEN

Attorney

DECEMBER 2021