Metropolitan News-Enterprise


Friday, July 18, 2003


Page 1


Divided Ninth Circuit Overturns EPA Ruling in Ethanol Case


From Staff and Wire Service Reports


A divided panel of the Ninth U.S. Circuit Court of Appeals yesterday overturned a federal regulatory ruling that would have forced California to add ethanol to most gasoline as MTBE is phased out.

Senior Judge William C. Canby Jr. said the Environmental Protection Agency abused its discretion when it refused to consider the effect on particulate matter pollution-along with the effect on ozone levels-of the state’s request for a waiver of oxygen level requirements under the federal reformulated gasoline program.

Canby noted that the gasoline program provisions of the Clean Air Act allow the agency to waive the requirement of two percent oxygen content if compliance would “prevent or interfere with the attainment by the area of a national primary ambient air quality standard.” The EPA ruled in 2001 that since California had not shown the waiver would help reduce ozone levels, it was unnecessary for the agency to consider whether it might reduce particulates.

EPA’s Approach

“The EPA’s...approach...cripples the goal of the Clean Air Act when, as in the current situation, the effects on one N[ational] A[mbient] A[ir] Q[uality] S[tandard] are merely uncertain, not necessarily negative,” the judge explained. “Although California was unable clearly to demonstrate that the oxygen requirement would interfere with ozone standards, the EPA found no conclusive evidence that a waiver would be harmful to ozone. The effects of a waiver on ozone are uncertain at worst. The EPA nevertheless refused to consider the significance of the P[articulate] M[atter] evidence. It adhered to this refusal even though the benefit of a waiver to the PM NAAQS could conceivably outweigh the uncertain effects of that waiver on ozone levels.”

Judge William A. Fletcher concurred. Judge Diarmuid F. O’Scannlain dissented, writing that the “statutory language limits waivers to circumstances in which the benefits to air quality can be clearly demonstrated.”

He added:

“The EPA rightfully surmised that Congress did not authorize waivers when the purported benefits were speculative and uncertain. Accordingly, the EPA reasonably determined that it would grant waivers only if they would aid in attaining at least one standard, and would not hinder attainment for any other standard.”

O’Scannlain noted that Canby’s opinion for the panel conceded that the statute was silent about how the agency should handle proposed waivers which “could aid in attaining one standard, but impede compliance with another.”

He declared:

“This is a classic case in which we are bound to give due deference to the EPA’s statutory interpretation.... In light of the narrow statutory exception, it is perfectly reasonable for the EPA to resolve inherent ambiguities in forecasting air quality effects by requiring that the projected impact on a relevant standard-especially for an important air quality component such as ozone-be at least neutral, if not beneficial. Contrary to the majority’s surmise, Congress never instructed the EPA to resolve uncertainties in missions modeling by balancing harmful effects to one air quality standard with potential benefits to another. By forcing the EPA to engage in such a speculative enterprise in an area far beyond judicial expertise, I am afraid that our holding today has impermissibly encroached upon the agency’s discretion.”

Waiver Called Unlikely

Frank O’Donnell, executive director of the nonprofit Clean Air Trust in Washington, D.C., told the METNEWS yesterday that while the ruling sent the “ball...back to the EPA’s court,” he thought it was unlikely the agency would agree to the waiver after reconsidering the matter.

“A waiver is unlikely for political reasons,” O’Donnell said. “The Bush administration will try to concoct another rationale in favor of ethanol to curry favor with the farm states.”

The oxygen requirement is a “de facto ethanol mandate,” O’Donnell explained. He said California had cited a Chevron gasoline without additives in arguing that cleaner fuels are possible without using either MTBE or ethanol.

New York has a waiver request similar to California’s pending before the EPA, O’Donnell said.

William Rukeyser, a spokesman for the California Environmental Protection Agency, said the court’s decision validates what the Davis administration has said since 1999—that the state already has the cleanest-burning gasoline in the world.

California refiners should be given the flexibility to use oxygenate or skip it as long as they produce clean-burning gasoline,” Rukeyser said. “Ethanol and MTBE do nothing to fight smog in addition to what California has done already.”

On Tuesday, Sen. Dianne Feinstein, D-Calif., heaped more doubt on the effectiveness of ethanol. In a letter to Winston Hickox, secretary of Cal-EPA, Feinstein strongly questioned the effects of ethanol on air quality.

“The switch to ethanol-blended gasoline is considered one of the main culprits in the increased ozone. Since ethanol’s volatility increases smog, particularly in the summer, I believe we need to look carefully at its impact on air quality,” Feinstein wrote.

Davis originally ordered that the methanol-based additive MTBE be banned, and a Dec. 31, 2002, deadline had been set to eliminate its use. But after the EPA turned down the state’s waiver request, Davis extended the MTBE phase-out deadline to Dec. 31, 2003.

The EPA did not immediately return calls seeking comment on Thursday’s ruling.

Currently, about 70 percent of the state’s gas contains ethanol, Rukeyser said.

The Oxygenated Fuels Association, a proponent of MTBE use, was quick to downplay the ruling as a victory for the Davis administration.

“I don’t think that this ruling particularly ties the hands of the EPA,” said Frank Maisano, a spokesman for the group. “Given (the ruling’s) narrow nature, the EPA could very easily come back with the same ruling.”

David Pimentel, a professor in Cornell University’s Department of Agriculture and Life Sciences, agreed with California that ethanol is an environmental bust.

“It does take more energy to produce a gallon of ethanol than you actually get out of ethanol,” Pimentel said. “It is a very energy intensive and environmentally costly crop to produce.”

The case is Davis v. U.S. Environmental Protection Agency, 01-71356.


Copyright 2003, Metropolitan News Company