California judge appears reluctant to force unleaded fuel
Tentative ruling favoring FBOs, fuel distributors contested; decision pending
A California judge took a skeptical view of the key argument that unleaded piston aviation fuel is "commercially available" in a preliminary ruling that would preserve avgas availability at nearly two dozen California airports.
Alameda County Superior Court Judge Somnath Raj Chatterjee heard arguments March 5 on his tentative ruling (issued prior to the hearing) denying an effort by the Center for Environmental Health to enforce the terms of its 2014 Consent Judgment, in effect a settlement agreement between CEH and the fuel distributors and FBOs. Lawyers representing CEH argued the distributors and FBOs had failed to live up to their agreement to sell fuel with the lowest lead content "commercially available."
In the tentative decision, Chatterjee expressed skepticism that the original lawsuit's invocation of Proposition 65, a state law that requires warning labels on products containing certain chemicals, undermined the argument for forcing the FBOs and fuel distributors to sell G100UL:
"The Court is concerned that the Consent Judgment turned a case about warnings into a case about forcing a fundamental industry shift through the means of a consent decree, particularly here where regulatory bodies and industry groups are currently addressing the same issue—transitioning to the broad-based use of Avgas with lower levels of lead."
The judge analyzed two key phrases in the 2014 agreement: "approved for aviation use," and "commercially available." As to approval, he rejected the plaintiff's argument that an STC amounts to "approval" as that word is used in the agreement.
"STC approval concerns a modification from the original design rather than a general approval. Plaintiff has not demonstrated general approval as would be the situation if there were approval under the FAA's PAFI or EAGLE programs," Chatterjee wrote, referring to the FAA Piston Aviation Fuels Initiative and the Eliminate Aviation Gasoline Lead Emissions industry-government collaboration (of which AOPA is a founding member).
Chatterjee's tentative ruling affirmed the aviation fuel suppliers' and retailers' interpretation of these elements of the 2014 agreement.
"The Court as a matter of contract interpretation reads the word 'approved' as meaning approved by the FAA for general use and reads the phrase 'commercially available' as meaning both commercially available and commercially feasible. This broad interpretation of those terms is appropriate to ensure that the application of the Consent Judgment (1) is consistent with California and federal legislation and regulation regarding aviation fuel, (2) is lawful, reasonable, and consistent with its evident object, and (3) does not undercut a complex regulatory process that accounts for a wider range of stakeholders and issues than those evident here."
Aviation advocates have warned the court and the public that adverse effects would flow from a ruling in favor of CEH that disrupts the availability of 100LL fuel that many aircraft continue to rely on. The General Aviation Manufacturers Association issued a statement March 3 reiterating arguments made to the court that G100UL, presently sold at two California airports, has met with resistance from aircraft and engine manufacturers.
"Although the FAA issued an STC allowing for its use in airplanes, this is the only aviation fuel that has not been subject to a stakeholder consensus peer review process and does not have the endorsement for use by piston-engine and aircraft Original Equipment Manufacturers (OEMs) or other stakeholders such as distributors and FBOs due to lack of transparency and understanding of the new fuel’s composition and performance properties," said GAMA CEO Pete Bunce. "Additionally, this fuel cannot be used in piston helicopters."
Curt Castagna, president and CEO of NATA (founded in 1940 as the National Air Transportation Association), serves as co-chairman of the EAGLE initiative and echoed Bunce's comments in a public statement ahead of the March 5 hearing, asserting that fuel distributors, FBOs, and airports "require reliable, transparent data from across the supply chain to thoroughly understand the composition, properties, and materials compatibility of emerging fuels. Recent questions, concerns, and reports on potential materials incompatibility of the CEH-specified new fuel in the California marketplace, as well as the lack of approval and endorsement by multiple aircraft and engine manufacturers, cannot be ignored while the industry still seeks data to assist in the transition to a new fuel.”
GAMI has resisted calls to submit its fuel for independent testing and evaluation. Testing of G100UL conducted by the company internally, and in collaboration with Embry-Riddle Aeronautical University to support the STC application for G100UL, has not been made public. NATA and GAMA both noted the recent communications to owners from Cirrus Aircraft, Lycoming, Piper Aircraft, and Textron Aviation advising owners that the companies have not approved the use of the new fuel based on field reports of leaks that may be related to the introduction of GAMI fuel into aircraft with certain fuel tank sealants, seals, or possibly other system components.
"I firmly believe in the need to be both transparent and factual," AOPA President Darren Pleasance wrote soon after his tenure began in January. He further noted that AOPA does not support any one particular fuel over others, and remains a strong proponent of a "burn and learn" approach, with transparent communication of findings among the FAA, industry, and aircraft owners to inform decisions.
AOPA flew a 1966 Beechcraft Baron for a year starting in late 2023 and logged 200 hours running G100UL in one engine and avgas in the other. The aircraft, like others in the relatively small number of aircraft that have begun to use the fuel since it first went on sale to the public in late 2024, developed fuel leaks that left brown stains on white paint. Kurt Hartwig of Eagle Fuel Cells in Wisconsin removed, inspected, and tested the bladders that were produced in 1974 and 1978, and overhauled in 2023 before the demonstration began. Small leaks were found on both sides, and Hartwig was unable to determine why the leaks occurred, or why they were more numerous on the G100UL side, but suspects that improper tightening of fasteners securing gaskets was the main culprit.
"In the interest of aviation safety, GAMA calls for transparency and openness in a manner consistent with established industry practices for all transportation fuels," GAMA stated March 3, also calling for "a broad stakeholder peer review assessment of new fuel property and performance data through the ASTM consensus standards process or similar."
