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June 25, 2013

Marine Industry Suffers Legal Setback in the Battle Against E15

High court ruling means boaters must continue to be vigilant when fueling up.

The U.S. Supreme Court denied a petition alleging that the Environmental Protection Agency overstepped its authority by allowing distribution of fuel with 15 percent ethanol, or E15, into the overall supply despite the EPA's prohibition of E15 use in marine and other engines, Sounding Trade Only reported today.  

Having essentially lost the case in court, the National Marine Manufacturers Association (NMMA) and other groups will revisit a case aimed at protecting consumers from unwittingly filling tanks with E-15 because the fuel has been shown to be harmful to marine engines and other non-automotive powerplants, according to the report.

“The overall challenge to the EPA’s authority has been denied, simply based on a procedural issue,” Nicole Vasilaros, director of regulatory and legal affairs for the NMMA, told Trade Only. “The engine products group and the others involved, the lower court decided we were not the right parties to bring the case and unfortunately the Supreme Court did not take the case into consideration. They denied our petition.”

The NMMA is part of a coalition composed of fuel, manufacturing and food groups that had brought the case to the highest court in hopes of getting the EPA’s waiver to allow E15 into the marketplace overturned. In August, the U.S. Court of Appeals for the District of Columbia said the plaintiffs didn’t have grounds to bring the case and therefore couldn’t consider the merits of arguments they presented, according to the Trade Only report.

In January, the court denied a rehearing on the EPA decision. Dissenting Judge Brett Kavanaugh said then that the EPA waiver “plainly violates” statutory text. Now the coalition will shift gears and revisit a court case alleging that the EPA has not done enough to prevent “misfueling,” or having E15 mistakenly land somewhere, such as in a boat, where it will harm the engine, Vasilaros told Trade Only.

“Now we’ll reopen misfueling litigation that we had set aside, pending this review,” Vasilaros said. “We want to make sure the EPA takes the correct precautions to prevent consumers from using fuel that’s strictly prohibited by the EPA for marine engines. We believe their current mitigation plan doesn’t do that.”

The EPA’s current mitigation plan consists largely of small signs labeling pumps and a 5-gallon minimum to ensure no E15 fuel is left in the hose and unwittingly gets into vessels that it could harm, the report states. A survey last year found that 35 percent — six of 17 — of the registered sellers of E-15 are not labeling the higher-ethanol gas at the pump. The survey also found that several service stations selling E-15 were not registered as required by the Renewable Fuel Standard, which calls for an overall reduction in the fuel supply through the use of biofuels. The sellers of E15 are in Iowa, Kansas and South Dakota. The survey, performed by RFG Survey Association, did not name the retailers that weren’t in compliance. The NMMA also is joining several groups, including the Marine Retailers Association of the Americas, to try to get some of the legislation in the Renewable Fuel Standard changed, Trade Only reports.

For practical tips for preventing ethanol-related damage to your boat and marine engines, check out my Better Boating column entitled "Living with Ethanol."