DES MOINES, Iowa – Two Midwest attorneys general recently announced their ‘intent to sue’ the EPA for what they called the agency’s ‘illegal delay’ in allowing year-round E15 sales.

In a March 6 letter to EPA Administrator Michael Regan, Iowa Attorney General Brenna Bird and Nebraska Attorney General Mike Hilgers demanded the EPA change the proposed rule to allow for E15 sales this summer.

“The EPA needs to follow the law and make E15 gasoline available year-round,” Bird said. “With record-high gas prices, consumers deserve relief and flexibility when paying at the pump.”

Despite a Clean Air Act requirement to act within 90 days, the Iowa Renewable Fuels Association said the EPA took over 300 days to issue a proposed rule and “used the delay to justify implementing the new rules for the summer of 2024 instead of the summer of 2023.”

“After illegally delaying action, the Biden Administration is trying to use the delay to justify putting off year-round E15 until 2024,” said Monte Shaw, Iowa Renewable Fuels Association executive director. “They claim they must hold the petroleum refiners harmless by giving them more time to comply. Well, who is holding the Midwest consumers and retailers harmless?”

According to Iowa Gov. Kim Reynolds, E15 gasoline is made up of 15 percent ethanol, causing it to emit less emissions and to save consumers money, compared to E10 gasoline; E15 is already sold during fall, winter, and spring.

In an April 28, 2022, letter to the EPA, a bipartisan coalition of governors from Illinois, Iowa, Kansas, Minnesota, Nebraska, North Dakota, South Dakota, and Wisconsin, requested a waiver to extend the sale of E15 through summer months, starting April 28, 2023. 

Should the EPA fail to change the rule’s effective start date, the attorneys general said the coalition of governors has reserved the right to sue.

“To the extent there are real production, distribution, retail and other problems as raised by the EPA, those are problems of the EPA’s own creation,” the letter said. “We demand the EPA issue temporary emergency declarations for the 2023 high-ozone season to bridge the gap until the waiver takes place.”

Geoff Cooper, Renewable Fuels Association president and CEO, said the organization appreciates the action taken by the attorneys general.

“The law is clear: the EPA should have finalized the governors’ petition last July and had everything ready to go for this summer,” he said. “Now, the marketplace finds itself in between a rock and hard place because of the administration’s inaction, and consumers are at risk of losing access to low-cost, lower-carbon E15 in a few short months.

“We join these AGs in urging the EPA to follow through on its statutory obligation to finalize the governors’ petition before this summer,” he added.

The EPA approved 15 percent ethanol blends, or E15, in 2011 for use in all 2001 and newer vehicles, which account for more than 96 percent of vehicles on the road today.

According to the National Corn Growers Association, retailers have increased availability of E15, often marketed as Unleaded 88, to offer consumers choice and lower fuel costs, as well as increase the fuel supply. 

The National Corn Growers Association said it supported the governors’ plan and expressed serious concern over the one-year delay in implementation and the market uncertainty the delay creates for E15 in 2023.

“These governors took the initiative and used authority under the law to ensure their consumers could maintain access to low-cost, low-emissions E15,” said Tom Haag, National Corn Growers Association president, and an Eden Valley, Minn., farmer. “These governors did the right thing, but the EPA’s proposal (to wait until 2024 to implement the regulation) delays this solution.

“Higher ethanol blends lower emissions, save drivers money, and allow for consumer choice,” he added.” With the proposed delay in implementation, we now urge the EPA to use existing authority to prevent a disruption in E15 availability this summer.”