City of Portland, Coalition Succeed in Defending Portland’s Landmark Fossil Fuel Policy

Oregon Court of Appeals Largely Reverses Land Use Board Ruling And Upholds Constitutionality of Portland’s Fossil Fuel Ordinance

Crag Law Center attorneys represented Columbia Riverkeeper, Center for Sustainable Economy, Portland Audubon and Oregon Physicians for Responsibility in defending Portland’s landmark fossil fuel ordinance.

Photo by Rick Rappaport.

Photo by Rick Rappaport.

On January 4, 2018, the Oregon Court of Appeals reversed in large part a key legal decision that had blocked the implementation of Portland’s landmark fossil fuel policy. In 2016, the Portland City Council voted unanimously to amend its zoning code to restrict major new fossil fuel developments such as oil train terminals. Acting in the wake of the Mosier oil train accident, thousands of community members weighed-in to support the City’s strong stand against expanding fossil fuel pollution.

Industry Challenges Portland’s Landmark Ordinance
Industry sued the City, arguing the ordinance was unconstitutional and violated multiple state laws. In 2017, the Oregon Land Use Board of Appeals (LUBA) ruled the City’s ordinance violated the dormant Commerce Clause of the U.S. Constitution. The City of Portland, Columbia Riverkeeper, and our partners challenged LUBA’s decision at the Oregon Court of Appeals.

Court of Appeals Rules Ordinance Constitutional
On January 4, 2018, the Court of Appeals overruled the majority of LUBA’s decision. The Court’s opinion states, “Contrary to LUBA’s opinion…, we conclude that the amendments do not violate the dormant Commerce Clause.” The Court’s ruling affirms the City’s authority to protect the health and safety of Portland’s residents while taking meaningful action to address climate change.

“The City fought hard to uphold the will of Portlanders who want to curb our use of dangerous fossil fuels while protecting our communities from the safety, health, and climate hazards of reckless proposals like oil train terminals,” said Dan Serres, Conservation Director for Columbia Riverkeeper. “We were proud to stand with the City in defending this robust, well-reasoned policy against legal attacks from the oil industry and its allies at the Portland Business Alliance.”

While it’s a huge step in the right direction, the Court of Appeals decision leaves more work for the City before the ordinance can go into full implementation. The Court sustained LUBA’s ruling that Portland violated Goal 2 of Oregon’s statewide planning goals. The City of Portland can cure this defect through additional procedure and reinstate the Fossil Fuel Terminal Zoning Amendments.

Check out the Court’s decision here.

Next Steps
Stay connected with Riverkeeper for breaking developments in the legal fight to protect Portland and our climate from fossil fuel development. The City Council may hold additional public meetings to address the Court of Appeals’ decision. And appeals to the Oregon Supreme Court are likely.

Thank You to Our Partners & Members
We are deeply grateful to the attorneys at Crag Law Center, Maura Fahey and Scott Hilgenberg, who represented Columbia Riverkeeper, Oregon Physicians for Social Responsibility, Center for Sustainable Economy, and Portland Audubon Society in defending Portland’s historic fossil fuel policy. Most of all, thank YOU for standing up to climate polluters and persuading the City of Portland to take this bold stand.


 

FOR IMMEDIATE RELEASE

Portland’s Fossil Fuel Infrastructure Restrictions Do Not Violate the US Constitution


January 4, 2017 (Salem, OR)—
Today, the Oregon Court of Appeals reversed, in large part, a Land Use Board of Appeals (LUBA) decision that invalidated Portland’s landmark Fossil Fuel Terminal Zoning Amendments, passed unanimously in December 2016. The Court ruled that Portland did not violate the Dormant Commerce Clause of the U.S. Constitution. The Court’s decision opens the door for local governments to continue to take meaningful action to combat climate change.

Last August, the Portland City Council unanimously voted to appeal LUBA’s decision, which stuck down the city’s ordinance. A coalition of organizations represented by the Crag Law Center, including Oregon Physicians for Social Responsibility, Center for Sustainable Economy, Columbia Riverkeeper, and Audubon Society of Portland, intervened to support the city’s defense of the fossil fuel ordinance.

The Court of Appeals also reversed LUBA’s ruling that the ordinance violated Statewide Planning Goal 12, which governs transportation planning. The Court concluded that the ordinance does not impact transportation facilities or the flow of goods and services in the local and regional economy. The Court sustained LUBA’s ruling that Portland violated Goal 2 of Oregon’s statewide planning goals. The City of Portland can cure this defect through additional procedure and reinstate the Fossil Fuel Terminal Zoning Amendments.

“We’re thrilled. Today’s decision affirms that Portland and other communities can implement innovative protections to counter threats to human health and safety from dangerous fossil fuel infrastructure, ” stated Regna Merritt of Oregon Physicians for Social Responsibility.

“As we feel the effects of climate change, from forest fires to ice storms, the City of Portland and its grassroots climate activists are leading the way on solutions,” said Mia Reback lead organizer for 350PDX. “Today’s decision allows Portland to continue its internationally recognized work to stop fossil fuels, reduce greenhouse gases, and ensure a justice based transition to 100% renewable energy.”

“The Court’s decision confirms the City’s ability to stand up for the health, safety, and environment of its residents by restricting dangerous developments such as new oil train terminals,” said Dan Serres, Conservation Director of Columbia Riverkeeper.

“Today’s decision to uphold the landmark policy to restrict Fossil Fuel development is a huge win for the City, its residents and anyone concerned about ensuring that local jurisdictions are able to maintain the ability to protect their communities and fight climate change,” said Bob Sallinger, Conservation Director for Portland Audubon. “It is disappointing that the Portland Business Alliance would join Big Oil in trying to reverse critically important efforts to protect our local environment.”

“This is an important signal to other local governments that they can protect their residents from the many dangers of the fossil fuel industry,” said Nicholas Caleb, the Staff Attorney at the Center for Sustainable Economy. “Many other municipal governments were waiting on this decision to follow Portland’s lead and continue to fight together for a healthy climate system and truly sustainable economy.”

“We are encouraged by the Court’s rejection of the fossil fuel industry’s effort to defeat local action to protect our climate and communities from the dangers of fossil fuels,” said Maura Fahey, Staff Attorney at Crag Law Center. “Right now, it is up to local communities to stand up for our future and to push back against the fossil fuel industry.”

Resources:
Read the opinion here – http://www.publications.ojd.state.or.us/docs/A165618.pdf

Oregon Physicians for Social Responsibility, Portland Audubon Society, Columbia Riverkeeper, and Center for Sustainable Economy are represented in this case by Crag Law Center, a nonprofit public interest environmental law organization.

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3 Comments

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3 Responses to “City of Portland, Coalition Succeed in Defending Portland’s Landmark Fossil Fuel Policy”

  1. Don Steinke says:

    Thank you all for your work on this!!!

  2. Thanks Dan, and Team Riverkeeper! This is such great news–Onward to the future.
    Thanks for staying strong against industry, and for never giving up.

    Amanda G Moore

  3. Hurrayyy!!!! Great work, Congratulations!! Outstanding!! The link may be too late, but shows the vast effect of less fuel use, etc., on gas tax revenue funding. Yippeeee!!!!