Court Orders EPA to Reconsider Ethanol Gasoline Requirement

A federal appeals court ruled Thursday that the Bush administration must reconsider its decision to force California to use the gasoline additive ethanol, which state air quality officials say is unnecessary to reduce air pollution.

Under the ruling, the court concluded that the U.S. Environmental Protection Agency acted improperly two years ago when it denied California’s request for a waiver from a federal requirement to add ethanol to its gasoline. The state maintained that although ethanol would eliminate water pollution problems associated with a fuel additive it replaced, it was of no value in improving the air in the nation’s smoggiest state.

“We conclude the EPA abused its discretion in refusing to consider and weigh the effect of the proposed waiver on particulate matter pollution along with its effect on ozone levels,” Justice William C. Canby Jr. wrote on behalf of the 9th Circuit Court of Appeals in San Francisco.

Applauding the ruling, Gov. Gray Davis said, “It tells the U.S. EPA that my administration has been right for the past four years as we have moved to protect our air and water while minimizing the risk of gasoline price spikes.”

California officials have skirmished with the White House on several environmental fronts. In this case, they are concerned that the federal government is eroding the state’s special status to chart its own path to clean air, a privilege California enjoys because its anti-smog efforts predate the federal government’s.

However, the court decision does not mean the composition of gas sold in California will change any time soon. The court-ordered EPA review could take months, and there is no guarantee the agency will grant California the waiver it seeks. The agency is under bipartisan pressure from Midwestern lawmakers, agribusiness and farmers to require California to continue using ethanol, a corn-based fuel additive, as an oxygenate to make gasoline burn more efficiently.

“It’s the politics of corn. The oxygenate requirement was written into the Clean Air Act at the request of corn-growing states,” said William L. Rukeyser, assistant secretary for the California Environmental Protection Agency. “Oxygenate in California does not fight smog. It may even impede the fight against smog, so the feds should not require California motorists to buy it when they buy gasoline.”

But advocates of ethanol expressed optimism that California, like much of the country, ultimately will be required to keep the substance in the fuel supply. Though the court concluded that the U.S. EPA failed to consider how the fuel additive affects airborne particles that make haze, the justices said California had not sufficiently proved that ethanol is harmful to air quality.

The court decision comes as smog blankets much of Southern California under hot, humid conditions. Air quality this summer is the poorest in five years, triggering debate over whether the state is on the right track toward achieving health-based air pollution goals.

Ethanol was added to gasoline to replace another additive, MTBE, which is being phased out this year after tests showed it caused extensive water pollution. About 70% of the state’s fuel supply now contains ethanol. A federal report recently concluded that the switch contributed to a statewide rise in gasoline prices.

Oxygen-rich compounds like ethanol were first added to gasoline to help cut wintertime carbon monoxide, a poisonous gas emitted from tailpipes, but its use was later expanded to help control ground-level ozone, a summertime pollutant and powerful lung irritant.

In 1999, California officials sought an exemption for its use, arguing that it no longer helps cut smog here because reformulated gasoline and advanced computers achieve the same reductions. EPA staff reviewed California’s automotive emissions controls and reached a similar conclusion during the Clinton administration, but the agency reversed course after President Bush took office.