Because of a fair bit of mis-information being asserted around the CEH motion, a few key points must be borne in mind as the arguments of GAMI’s competitors and others are considered. 1) Neither the State nor the Federal government is seeking to ban 100LL in California. This is an action by a party to litigation that was resolved in 2014 on certain contractual terms embodied in a Consent Decree that was approved by the court. Specifically, a number of Avgas distributors who were parties to that case agreed to settle the litigation with a promise that they would sell Avgas with lower concentrations of lead than are in 100LL (0.56g/liter) if and when such fuels become commercially available. These distributors who settled the earlier case were not required to make this deal, they did it because it seemed to be in their interests to resolve the litigation.
As it turns out, G100UL, FAA-approved for all aircraft piston engines 2 years ago, has zero lead content. According to CEH in what I read as pretty clear logic, G100UL is now commercially available in California as it is approved for all piston airplane engines by the FAA, the manufacturer states that it can make enough to supply the demand and it is otherwise being offered for sale at prices and on terms sufficient to meet the needs of aircraft operators . And G100UL is fungible with 100LL in all quantities. UL94 can’t meet the “commercially available” definition in the Consent Decree because it isn’t fungible with 100LL in all proportions and, most specifically, UL94 can’t be used by the piston aircraft engines that burn the lion’s share of 100LL.
This is simply a motion by CEH to enforce that court-approved promise, a private entity asking the court to require other private entities who thought the settlement from 2014 was in their best interests to do what they promised.
- The arguments against finding that G100UL is commercially available (which is a defined term with specific meaning in the Consent Decree) are weak. Nothing in the Consent Decree relieves the settling Distributors from making a lower-lead content fuel that is otherwise commercially available because either the State or Federal Government has enacted legislation allowing for the continued sale of 100LL for some future period of time. Those laws in fact do allow for the continued sale of 100LL in that period, even if unleaded “commercially available” avgas is also sold. As the CEH motion succinctly states, “The fact that sellers and distributors who did not sign the Consent Judgment and expressly agree to sell Avgas with the lowest lead concentration approved and available for use have additional time to begin distributing and selling unleaded Avgas does not undo Settling Defendants’ obligations under the Consent Judgment. Settling Defendants negotiated a Consent Judgment that was entered by this Court that requires them to sell unleaded Avgas as soon as it is approved and available.” The fact that G100UL doesn’t have an ATSM approval is likewise of no merit, as ATSM industry consensus is merely one way to gain approval for use of an aviation fuel (and have that fuel be “commercially available”). The FAA has determined through other means that G100UL is approved as an aviation fuel for piston airplane engines, and that is enough to meet this prong of the commercial availability standard.
Consider carefully the arguments being made, and the parade of horribles being asserted. The distributors of aviation fuels who signed and agreed to be bound by the 2014 Consent Decree will be judged according to the promises they made in that document, and nothing more.