Nebraska Sues EPA Over Ethanol Rules

This week, Nebraska Attorney General Mike Hilgers joined the State of Iowa in suing the Environmental Protection Agency (EPA) for failing to timely fulfill the request by Iowa and Nebraska Governors to allow the sale of year-round E15 gasoline.On April 28, 2022, a bipartisan coalition of eight governors asked the EPA to allow the sale of E15 gasoline through the summer.The Attorney General's Office issued a statement that said, in part, “Despite the Clean Air Act requiring the EPA to comply within 90 days, the EPA has remained silent. It has now been over 376 days since the expiration of that 90-day deadline.”E15 is a blend of 15 percent ethanol and 85 percent gasoline. It contains five percent more ethanol than E10, which is currently the most common fuel used in the U.S. E15 is higher in octane, usually 88 octane, while E10 has an octane rating of 87.Increase consumption of E15 could significantly impact corn farmers, since corn grain is used to make ethanol. Nebraska has the second largest ethanol nameplate capacity and the second largest ethanol operating production in the country, based on the federal figures.In addition, ethanol is touted by some as a more environmentally friendly alternative to gasoline because corn is a renewable resource and, according to the Nebraska Ethanol Board, “when consumers choose ethanol at the pump, they are helping the environment. Unlike pure gasoline, ethanol is non-toxic and cleaner burning. Its use reduces greenhouse gases by 46 percent.”“Reduced reliance on fossil fuels and increased environmental protections are major elements of President Joe Biden's agenda. This stance on E15 has created an unusual twist, where it is Republican politicians accusing the president of not being ‘green’ enough.”Jane Kleeb, Chair of the Nebraska Democratic Party, supports year-round E15, althgough she is not convinced a lawsuit is the way to go about it. She told FJN, “For years the Nebraska Congressional delegation and our Governors have failed to move forward on the basics of ensuring drivers can choose E15 year round. This saves drivers money, helps family farmers and takes market share away from Big Oil that has a history of price gouging. It would be great if instead of lawsuits everyone could come to table and stop pointing fingers. If we keep kicking the can down the road the only ones that win are Saudia Arabia and Exxon.”The Attorney General's statement also said, “The Attorneys General filed the lawsuit to ensure the EPA promulgates regulations that give consumers in their states access to low-emissions E15 during the summer driving season. Allowing year-round sale of E15 will reduce the cost of gasoline for consumers and avoid supply shortages. The move would also benefit Nebraska’s corn farmers, ensuring they have another stable and consistent outlet for their product. Many states and consumers prefer access to E15 as it produces fewer dangerous emissions and is often sold at a lower price.”“The Biden Administration knows that increasing access to E15 will help consumers obtain some relief from the rising cost of gasoline, provide support for our farmers, and strengthen US energy security during a turbulent time,” said Attorney General Hilgers. “Earlier this year the administration recognized as much when it issued a temporary waiver. There is no reason that waiver shouldn’t be made permanent.”Earlier this year, Governor Jim Pillen signed LB (Legislative Bill) 562 into law, which changes regulations governing E15. In order to encourage increased use of E15, the legislation requires motor fuel retail dealers in Nebraska to advertise and sell E-15 from at least 50 percent of their qualifying dispensers if they build a new retail motor fuel site or replace more than 80 percent of the motor fuel storage and dispensing infrastructure at an existing site, beginning in 2024.The bill also increases a state income tax credit for retail dealers from five cents to eight cents for each gallon of E-15 sold during 2024. The per gallon credit will be nine cents in 2025, eight cents in 2026, seven cents in 2027 and five cents per gallon in 2028. The bill increases the annual limit on credits from $4 million to $5 million for those years.Per the Attorney General's Office, “The suit demonstrates that a respectful approach to federalism empowers the states to act in a manner to best protect their states’ air quality, consistent not only with the Act’s plain text but with the Clean Air Act’s intent.”

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