Above Photo: NATURAL GAS STORAGE TANKS. (CREDIT: GETTY IMAGES/ ISSARAWAT TATTONG)
The Oregon Court of Appeals found that Portland’s groundbreaking fossil fuel infrastructure ban does not violate the Constitution.
The Oregon Court of Appeals dealt one of the most progressive climate policies in the country a major victory on Thursday when it ruled that Portland’s fossil fuel infrastructure ban does not violate the U.S. Constitution.
The ruling overturns an earlier decision by the state’s Land Use Board of Appeals — an administrative body charged with deciding land use conflicts — which found that the ban on new fossil fuel infrastructure within city limits violated the Interstate Commerce Clause of the Constitution.
“We’re thrilled,” Regna Merritt, director of the Healthy Climate Program at Oregon Physicians for Social Responsibility, said in a statement. “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.”
The ban, which was finalized in December of 2016, changed the city’s zoning code to create a new class of regulated land use for bulk fossil fuel terminals, which was defined as anything with a storage capacity in excess of 2 million gallons — things like massive storage facilities for natural gas, or export terminals for fossil fuel. And while it allowed current fossil fuel infrastructure to continue operating, it prohibited the construction of new infrastructure within city limits.
Because of its unique geographic location between major fossil fuel producing areas of the country, like the coal mines of the Powder River Basin or the oil fields of the Bakken formation, and potential markets overseas, the port cities of the West Coast — and especially the Pacific Northwest — have been in the crosshairs of the fossil fuel industry for years. Since 2012, the Pacific Northwest has seen 26 proposals for large-scale fossil fuel infrastructure projects, including what would have been the country’s largest coal export terminal and the country’s largest oil by rail terminal. So far, none of these proposals have been built, stymied by a mix of local opposition, declining market conditions, and patchwork local laws.
But communities have begun looking for ways to stop these projects from being proposed in the first place, and have turned to local land use laws — which fall under the purview of local governments — to codify opposition to fossil fuel infrastructure. Numerous studies have shown that in order to avoid the worst consequences of climate change, the majority of the world’s fossil fuel reserves will need to remain untapped — a goal that runs counter to building new fossil fuel infrastructure, which can lock a community into decades of transporting fossil fuels.
When Portland passed its ban in 2016, then-mayor Charlie Hales said he hoped the move would be replicated by other communities along the West Coast, in an effort to build “a green wall of resistance against fossil fuel facilities.”
So far, five communities in Oregon and Washington have passed either permanent or temporary bans on new fossil fuel infrastructure. Two other communities — Tacoma and Seattle — are considering similar bans.
Some of that momentum was called into question last year, however, when the Oregon Land Use Board of Appeals, in response to a challenge to Portland’s ban brought by a coalition of local business and fossil fuel producers, ruled that the land use changes violated the Interstate Commerce Clause of the Constitution, which holds that only Congress has the power to regulate interstate commerce.
Supporters of the fossil fuel ban hope that Thursday’s ruling will send a positive signal to communities that might have been hesitant to enact their own policies for fear of a constitutional challenge from industry.
“A lot of other local governments around the country were waiting on this before moving forward with their own fossil fuel infrastructure bans,” Nick Caleb, a staff attorney with the Center for Sustainable Economy, told ThinkProgress. “Although this is only binding precedent in Oregon, it’s a strong signal to other communities now that a court has finally issued a ruling on this.”
The Oregon Court of Appeals did not completely overturn the Land Use Board of Appeals’ earlier decision, finding that the city of Portland failed to make the plan consistent with Oregon’s statewide planning goal that requires a city to submit an “adequate factual base” when creating land use changes. Specifically, the court found that the city failed to provide enough evidence that future use of fossil fuels would likely decline throughout the state; the city now has the option of submitting a body of evidence to satisfy this requirement. Until then, the ban cannot go into effect.
It’s also likely that opponents of the ban will appeal the court’s decision, volleying the issue to federal court.
Still, proponents of the ban cheered Thursday’s decision as a crucial win for local climate action, which has emerged in the last year as a powerful tool to counter the Trump administration’s federal deregulatory agenda.
“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,” Maura Fahey, staff attorney at Crag Law Center, said in a statement. “Right now, it is up to local communities to stand up for our future and to push back against the fossil fuel industry.”