Governors' Ethanol Coalition

Ms. Cathy Catterson
Clerk
United States Court of Appeals
for the Ninth Circuit
95 Seventh St.
San Francisco, CA 94103

Re: Davis, et al. v. U.S. Environmental Protection Agency, et al., Case No. 01-71356

Dear Ms. Catterson:

Consistent with the Court's preference as set forth in the Advisory Committee Notes to Circuit Rule 29-1, the Governors' Ethanol Coalition ("Coalition") respectfully submits this letter in lieu of a brief of amici curiae in support of Respondent, U.S. Environmental Protection Agency.

The Coalition is an association including the Governors of 26 states and Puerto Rico ("Member States"): Arkansas, Arizona, Colorado, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Montana, Nebraska, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Puerto Rico, South Carolina, South Dakota, Texas, Washington, Wisconsin, and Wyoming. Under the Clean Air Act, each of the Member States is charged with achieving or maintaining compliance with National Ambient Air Quality Standards. See, e.g., 42 U.S.C. §§ 110, 161, 172. In particular, the Chicago, Houston, and Milwaukee-Racine areas, which cover portions of three of the Member States, have been designated by the Environmental Protection Agency as Severe Ozone Nonattainment Areas.

The reformulated gasoline program promulgated under section 211(k) of the Clean Air Act, 42 U.S.C. § 7545(k), including the minimum oxygen content requirement that is the subject of this proceeding, governs the composition of reformulated gasoline sold in the Chicago, Houston, and Milwaukee-Racine areas, as well as portions of Kentucky, and the composition of conventional gasoline sold throughout the Member States. The reformulated gasoline program is thus a part of plans by which some of the Member States comply with the requirements of the Act.

As described in the brief of Intervenors Renewable Fuels Association and National Corn Growers Association, Congress intended the oxygen content requirement of the Reformulated Fuels Program to increase the use of ethanol, one of the fuel additives that provide oxygen content to gasoline ("oxygenates"), and thus to increase production of corn, currently the most common feedstock for ethanol. The phaseout of another oxygenate, methyl tertiary butyl ether ("MTBE"), in California and other states will further enhance demand for corn. A waiver of the oxygen content requirement will have a considerable adverse impact on markets for corn and ethanol. The Member States produce the vast majority of corn produced in the United States. In addition, most of the nation's ethanol production also occurs in the Member States. Whether this Court grants or denies the petition for review will thus have a significant impact on the economies of the Member States.

By this letter, the Coalition joins in the briefs of Respondent U.S. Environmental Protection Agency and Intervenors Renewable Fuels Association and National Corn Growers Association.

The Coalition agrees that the structure and legislative history of the reformulated gasoline program demonstrate that its central purpose is the reduction of ozone forming and toxic emissions from gasoline, and that Congress intended the oxygenate requirement to play a significant role in achieving that goal. The Administrator properly concluded that, in light of that purpose, a waiver of the oxygen content requirement would only be appropriate after a clear demonstration that the oxygen content would interfere with the attainment of a National Ambient Air Quality Standard and that a waiver would not interfere with attainment of another National Ambient Air Quality Standard - particularly that of ozone. The plaintiff's argument that a waiver is appropriate despite a significant likelihood of a negative impact on ozone runs counter to the entire purpose of the program.

The plaintiff's submittal fell far short of that demonstration. Indeed, even though the plaintiff, like the Member States, must use photochemical modeling to demonstrate that state plans will achieve attainment, it did not support its request with such modeling. Despite an extraordinarily extensive analysis, detailed in the Agency's technical documents, the Agency could not make up for the plaintiff's deficiency and could not independently make the necessary determination. The Court should not second-guess the Agency's exercise of its expertise in these matters.

As others have described, the Senate has recently passed legislation, now in conference, that would substitute a broader renewable fuels requirement for the oxygen content requirement of reformulated gasoline. During its deliberations, the Senate rejected efforts to eliminate the oxygen content requirement - whether in the plaintiff's state or elsewhere - absent such a substitute. The House of Representatives has similarly rejected a waiver of the requirement. The Coalition supports the Senate legislation. As long as the oxygenate requirement remains law, however, it should be enforced consistent with the purposes of the reformulated gasoline program.

Accordingly, the Coalition urges the Court to deny the petition for review.

Respectfully submitted,

Bob Holden
Governor of Missouri and
Chair, Governors’ Ethanol Coalition

Attachment: Certificate of Service
Enclosures: Three copies.

Richard M. Frank, Esq.
Attorney General's Office
1300 "I" Street
P.O. Box 944255
Sacramento, CA 94244-2550

Russell B. Hildreth, Esq.
Attorney General's Office
Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550

John Hannon, Esq.
Office of General Counsel
U.S.E.P.A.
1200 Pennsylvania Ave., N.W.
Mail Code 2344A
Washington, D.C. 20460

Jeffrey Bossert Clark, Esq.
Deputy Assistant Attorney General
950 Pennsylvania Ave., N.W.,
Washington, D.C. 20530

Michael R. Barr, Esq.
Pillbury Winthop, LLP
50 Fremont Street
San Francisco, CA 94105

Barry Direnfeld, Esq.
Michael Ward, Esq.
Swidler Berlin Shereff Friedman, LLP
3000 K St., N.W. Suite 300
Washington, D.C. 20007

Barbara Baird, Esq.
District Counsel
Jeri Voge, Sr., Esq.
Deputy District Counsel
South Coast Air Quality Management
District
21865 E. Copley Drive
Diamond Bar, CA 91765

Fran M. Layton, Esq.
Janette Schue, Esq.
Shute, Mihaly & Weinberger, LLP
396 Hayes Street
San Francisco, CA 94102

Gregory R. McClintock, Esq.
Mayer, Brown, Row and Maw
350 South Grand Avenue, 25th Floor
Los Angeles, CA 90071-1503

Daniel P. Selmi, Esq.
Attorney at Law
919 S. Albany Street
Los Angeles, CA 90015
Robert G. Slaughter
Maurice H. McBride
National Petrochemical & Refiners
Association
1900 L Street, N.W.
Washington, D.C. 20006

Richard Blumenthal, Attorney General
Judith Merrill, Ass't Attorney General
State of Connecticut
55 Elm Street
Hartford, CT 06141-0120

Tom Reilly, Attorney General
William Pardee, Ass't Attorney General
Commonwealth of Massachusetts
200 Portland Street
Boston, MA 02114

Eliot Spitzer, Attorney General
Caitlin Halligan, Solicitor General
Peter Lehner, Chief, Environmental
Protection Bureau
Jared Snyder
Carter H. Strickland, Jr., Ass't
Attorneys General
New York State Department of Law
120 Broadway
New York, NY 10271

Gail Ruderman Feuer
Natural Resources Defense Council
6310 San Vicente Blvd.
Los Angeles, CA 90048