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Well, it's a bit more involved than that. Right now there are genuine shortages driving prices up, which always happens at this time of year. All the refineries are having to go through their summer reformulation process, and from what I've heard (no confirmation or link on this aspect) it takes 3 days to completely finish that process.
It is all speculation. It is a commodity open to speculation. The gas price is not based on the production cost of the current stocks of fuel, but the speculation on what it will cost the companies to replenish their stock that they will then sell.
It is true, however, that the companies use two different arguments. If the price of oil is increasing, they base their prices on speculation of what the oil to replace their stocks will cost them. If the price of oil is decreasing, they base their prices on produciton costs. Sucks, but not illegal.
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