In the past week, the ethanol industry received two pieces of positive news.  First, the Congressional Budget Office (CBO) issued a report, entitled “The Impact of Ethanol Use on Food Prices and Greenhouse-Gas Emissions,” finding that high energy prices had a much more profound effect on the price of food than increased ethanol production in the period April 2007 through April 2008.  Second, EPA published a notice and solicited comments on a waiver application to increase the amount of ethanol that can be blended into a gallon of gasoline to up to 15 volume percent (E15).

CBO Report

The CBO report concluded that, for the period studied, ethanol production accounted for only 10 to 15 percent of the estimated 5.1 percent increase of food prices.  By comparison, the increase in the consumer price index (CPI) for all urban consumers for energy accounted for 22 percent of the 5.1 percent increase in the price of food.

In analyzing ethanol production’s contribution to the increase in the price of food the CBO assessed how increased ethanol production contributed to increases in the price of corn, animal products and soybeans, and how higher prices for these commodities contributed to the prices of foods that are measured in the CPI-U.  Other contributing factors noted by the CBO include a growing demand for meat that increased the demand for animal feed, dollar exchange rate fluctuations that increased demand for U.S. corn exports and concerns about weather for spring planting that caused corn prices to rise during the spring of 2008.

E15 Waiver Request         

The Clean Air Act authorizes EPA to regulate fuels and fuel additives to reduce the risk to public health from exposure to their emissions.  EPA’s regulations require that each manufacturer or importer of gasoline, diesel fuel or a fuel additive, register its product with EPA before “introducing the product into commerce.”  See generally, 40 CFR Part 79.  Since 1978, EPA has established a limit of ten volume percent ethanol (E10) for conventional (non flex-fuel) vehicles.  Growth Energy and fifty-four ethanol manufacturers submitted their E15 application on March 6, 2009.  After EPA’s Notice has been published in the Federal Register, stakeholders have 30 days to submit comments on the waiver application.  The Clean Air Act requires EPA to rule on the waiver application within 270 days of receipt, December 1, 2009.

There will almost certainly be comments submitted to EPA in opposition to the waiver request.  The National Petrochemical and Refiners Association, the American Lung Association, the Sierra Club, the Engine Manufacturers Association and other groups wrote former EPA Administrator Stephen Johnson on December 18, 2008, to oppose any increase in the 10% limit on ethanol in gasoline.  Among the concerns expressed, with respect to a higher blend, were potential machinery impacts, health and safety issues, emissions and compliance with the Clean Air Act.

EPA’s ruling on the waiver request could give an important signal on the direction the Obama Administration will take with respect to the ethanol industry.

For further information about this topic, please contact Akin Gump.