Dineen again pointed to big oil as a hindrance to biofuel production expansion. Once the ability to distribute fuel and the blend wall is the rationale for the waiver, “you turn the RFS over to the oil companies. They’re the ones that get to determine that – how much infrastructure is used, whether they want to provide the market access of (biofuels) to the consumer. History has demonstrated time and again they’ll do everything in their power to prevent that from happening.”

While expressing a desire not to enflame the situation further, Dineen did say the EPA’s position, “is highly vulnerable to a legal challenge. But we’re a long way from that.”

Jonathan Coppess, currently a professor at the University of Illinois and former chief counsel of the Senate Agriculture Committee and administrator of the FSA, agreed there are grounds for future legal action, if needed. “Should this get into the courts … how do you define ‘inadequate domestic supply’? Congress didn’t define any of the terms in the statute.”

As the situation percolates, Coppess said it will be key to see if the EPA continues “to follow the argument … that inadequate domestic supply includes the idea that the infrastructure and other constraints on the ability of consumers to purchase the fuel, as opposed to more simple: does the industry have the capacity to produce, and thus supply the market, the level of fuel the RFS has mandated?”

Just an hour earlier, during a conference call with reporters, Agriculture Secretary Tom Vilsack was asked about the proposed EPA rule. He stressed that the main thrust should be helping to get more biofuels to consumers.

“The EPA has put out a proposed rule and solicited comments on a wide range of aspects on the RFS,” said Vilsack. “That’s not just the (blend percentages) but also on how the government might be able to partner more effectively with industry to expand the distribution of products. Then, we wouldn’t be dealing with the fact of bumping up against the blend wall.

“We can, should and need to do as good a job as possible to make higher blends of ethanol and more advanced biofuels available to customers…

“As it relates to the environmental impact, the biofuel industry has had a positive impact in terms of air quality and water quality. As ethanol production facilities become even more efficient as we advance and move beyond a singular reliance on corn-based ethanol, we’ll continue to see environmental benefits.”

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Dineen said no one in the Obama administration has been “a more passionate, effective, or articulate advocate for ethanol than has Tom Vilsack. He’s done a tremendous amount to advance the cause of biofuels in the country. (The USDA) has worked tirelessly to get out the infrastructure that will allow us to continue to grow.”

However, continued Dineen, infrastructure isn’t everything. “You can have adequate infrastructure. But if oil companies don’t want to provide market access, they can still throw up innumerable barriers. … Without the hammer of the RFS, refiners, in my view, will continue to deny our industry access to the consumer.”