Lawsuits challenging EPA’s decision to grant two partial Clean Air Act waivers approving use of gasoline containing 15 percent ethanol (E15) could turn on the placement of a single “any” in the statute.

“It all comes down to one word—any,” Judge Brett Kavanaugh said during oral argument April 17.

As detailed in an April 17 World Climate Change Reportarticle, several industries, including petroleum groups, food producers, and engine and vehicle manufacturers, filed lawsuits in the U.S. Court of Appeals for the District of Columbia Circuit challenging EPA’s two waivers approving E15 for model year 2001 and newer vehicles (Grocery Manufacturers Ass'n v. EPA, D.C. Cir., No. 11-1072, oral argument 4/17/12).

The industry groups argued that Section 211 of the Clean Air Act does not authorize EPA to issue partial waivers for fuel additives such as ethanol.

But the legal meaning of the statute may depend on how the three judge panel chooses to read the word “any” in Section 211(f)(4).

The statute allows EPA to grant waivers for fuel additives provided they “will not cause or contribute to a failure of any emission control device or system (over the useful life of the motor vehicle, motor vehicle engine, nonroad engine or nonroad vehicle in which such device or system is used) to achieve compliance by the vehicle or engine with the emission standards….”

“ ‘Any’ simply refers to the emissions control device in the vehicle,” Jessica O’Donnell, the Justice Department attorney representing EPA, argued. EPA contended that reading of the statute would allow it to evaluate the impact of E15 on subsets of the vehicle market, therefore allowing it to grant the partial waiver for newer vehicles.

Such a reading of Section 211(f)(4) is too broad, the industry groups said. Instead, EPA should grant the waivers only in instances “where the fuel or fuel additive is suitable for all vehicles and engines the administrator has certified for use with the given fuel,” they said in their court brief.

Before the judges can rule on the meaning of “any” in Section 211, the industry groups still need to prove that they have standing to challenge the ethanol waivers--a prospect that looks iffy following oral argument.

The judges repeatedly pressed the petitioners to demonstrate how they were impacted by EPA’s decision.

However, Chief Judge David Sentelle still appeared uncomfortable with EPA’s more expansive interpretation of Section 211.

“I think you have to show that you can do it under the statute. … What we’re trying to figure out is where the statute says you can,” he said.