Biofuel proponents are making a mighty push against the EPA proposal to trim the 2014 Renewable Fuels Standard (RFS) mandate. Announced in mid-November, the EPA would reduce the RFS by 2.94 billion gallons – moving from 18.15 billion gallons to 15.21 billion.

Enacted in 2005, the required biofuel production level, argue proponents, reduces the United States’ reliance on foreign oil and bolsters farmers’ bottom lines. The EPA announcement has certainly not helped corn prices as the market continues to falter.

The EPA proposal is now in a 60-day comment period.

While not yet ripe for a lawsuit, the “legal underpinnings of this rule-making are, indeed, a critical issue,” said Bob Dineen, president of the Renewable Fuels Association, on Thursday.

“Some have portrayed the fact that we’re suggesting the (EPA) doesn’t have legal authority to do what they’re doing is a somewhat cynical reversal of where we’ve been. That’s because we’ve been talking about the flexibility the agency has for quite some time. We continue to believe that the agency has incredible flexibility to address some of the issues that have been raised with respect to the RFS – including adjusting volumes.

“It’s how they do that’s what’s important. We don’t believe the agency can invent authority that it doesn’t have by virtue of the statute.”

Dineen said the EPA proposal relies on a general waiver authority that sets up two tests for the waiver, or partial waiver, of the RFS.

“The first test is whether there is severe economic harm. In a situation like here, where ethanol is so much cheaper than gasoline today and providing consumers with a less expensive fuel at the pump, that’s not a test that can be met.

“The second test is one of adequate domestic supply. It’s (the EPA’s) tortured reasoning for what is ‘domestic supply’ that’s at the heart of this issue.

“Certainly, there is more than enough supply of grain-based ethanol and probably more than enough supply of other advanced biofuels, as well. One supply issue would be whether or not there are commercial volumes of cellulosic ethanol. The agency has appropriately used other authority to reduce the cellulosic number significantly.”

The agency, continued Dineen, “is going beyond that authority here, we believe, in reading into a waiver provision clearly focused on production and supply, and introducing consumption into the waiver authority. (The EPA has) introduced the notion of a ‘blend wall’ and the ability to distribute fuel as part of ‘adequate domestic supply.’ That’s where we think the EPA has dramatically overstepped their bounds, overstepped the statute, and is making a fundamental mistake.”