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  August 4, 2017

Portland Pledges To Defend Ban on Fossil Fuel Infrastructure Projects

City Council votes to appeal overturn of their historic ban of all new fossil fuel infrastructure projects. Nick Caleb, Staff Attorney at the Center for Sustainable Economy says local governments should be able to protect residents from dangers of fossil fuels
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Nick Caleb ​is Staff Attorney at the Center for Sustainable Economy, providing legal counsel for the Climate Justice Program. Nick graduated with an LL.M. from Tilberg University in The Netherlands after receiving a J.D. from the University of Oregon School of Law. Nick is active locally in Portland, Oregon policy-making​, with a particular focus on ​environmental justice, sustainable cities and issues around the commons. Formerly with "Neighbors for Clean Air" and "Our Children's Trust," Nick helped launch the Youth Climate Action Now (YouCAN) campaign. This campaign is a continuation of an effort that began with energetic youth in Eugene who organized to persuade the Eugene City Council to pass the country's first binding climate recovery ordinance, committing city planning and policy to a science-based, community-wide greenhouse gas reduction goal of 350 parts per million of CO2, the level deemed "safe" by climate scientists.


D. LASCARIS: This is Dimitri Lascaris for The Real News. As the residents of Portland, Oregon endure a searing heat wave, the City of Portland has voted to defend its anti-fossil fuels policy. Portland's first of its kind zoning ordinance, which banned new fossil fuel projects within city limits and prevented existing facilities from expanding, was overturned by the Oregon Land Use Board of Appeals on July 19th of this year, and that happened under pressure from the Western States Petroleum Association. But, this week, on August 2nd, Portland City Council voted unanimously, five to nothing, to appeal the decision by Oregon's Land Use Board of Appeals. Now, with us here to discuss what may become a precedent setting case, we are joined by Nicholas Caleb from Portland, Oregon. Nicholas is an attorney with the Center for Sustainable Economy, an organization that intervened in the litigation before the Land Use Board of Appeals. Thank you for joining us, Nicholas.

NICK CALEB: Thanks for having me.

D. LASCARIS: I would like you to start, if you could, by summarizing briefly the history of this case. How did it all begin and how did we end up where we are today?

NICK CALEB: The story of our case is about two and a half years old, and it comes first from a successful activist campaign to defeat a propane export terminal that had been planned at the Port of Portland. And after a successful victory that mobilized thousands of people in opposition to new fossil fuel infrastructure in our city, instead of wanting to have to fight these projects one by one, we began to talk to the city about what it would look like to actually put forward a policy to prevent the construction of new fossil fuel terminals.

Ultimately, that resulted in a resolution, and then a year long process to create the fossil fuel terminal zoning amendments, which are the amendments that are currently being challenged. In December of 2016, our Land Use Law was passed, and then very shortly after that, the Western States Petroleum Association, the Portland Business Alliance, and a few other groups sued the city. Because it was a land use case, it had to go to the Land Use Court of Appeals. That's just how it works in Oregon. The Land Use Board of Appeals was the first group to see what is, basically, the first of a kind ordinance.

Very strange procedural posture, only one of the three administrative hearings officers heard the case, because two of the hearings officers recused themselves, so one person essentially entered a judgment, and we think it was a poor judgment.

D. LASCARIS: Do we know why the others recused themselves?

NICK CALEB: They had a personal stake in the issue, and from what I understand, it was family members who participated in the public process of passing the Fossil Fuel Terminal Zoning Amendments. I'm not sure whether they were for or against it, also.

D. LASCARIS: This zoning ordinance, based on what I understand of it, it doesn't actually prevent the ongoing operation of existing fossil fuels infrastructure. And so, for example, if there were facilities at the Port in the city for loading petroleum products onto tankers. I don't know whether there are. But, if there are, they would continue, or be able to continue to operate, even if this zoning ordinance were upheld. Is that correct?

NICK CALEB: That's right. Generally in land use law, it's forward thinking. A lot of existing ... Well, most of existing developments are grandfathered in, and so it sort of, in the future, new fossil fuel infrastructure would be prohibited, but the existing terminals would be allowed to operate.

D. LASCARIS: I understand that the basis of the Land Use Board's decision was that the City Council ban on fossil fuel or new fossil fuel infrastructure is an unconstitutional restraint on interstate commerce. How do you respond to that argument?

NICK CALEB: We think it's a poor argument and a poor ruling. The city took great pains to structure the fossil fuel terminal zoning amendments to specifically get at the issues that they wanted to, and that was the dangers from new fossil fuel infrastructure. Of course, there are dangers from existing fossil fuel infrastructures, but we're sort of hamstrung as a city. We had to operate in kind of a narrow box, and so we took a year to develop code that would at least stop adding risk to the public.

And strangely enough, the Land Use Board of Appeals suggested that, because we didn't construct a full ban on all fossil fuel infrastructure currently existing and not, then that showed that were ... Had discriminatory intent. It's a very bizarre ruling in my opinion and it seems to diverge from precedent in the interstate commerce clause.

D. LASCARIS: There's another case of potentially historic significance pending in Portland, a case called Juliana versus The United States, popularly known as the Kids' Climate Change Lawsuit. In that case, the plaintiffs I understand, who include climate scientist James Hansen and his granddaughter, assert that through the government's affirmative actions causing climate change, the government has violated the younger generation or future generation's constitutional right to life, liberty, and property, and has failed to protect essential public trust resources. Is there a possibility that, that is an argument? The legal theory that the City of Portland could rely upon, that is has a constitutional duty to act to protect future generations from the deprivation of life, liberty, and property?

NICK CALEB: Were Juliana versus, I guess, Trump now, to be resolved in favor of the plaintiffs, and that's kind of a big if now, I don't know if you saw the most recent news, but the Ninth Circuit sort of granted a very unusual writ of mandamus to review the case before a trial had taken place. It's very strange circumstances in that case. But, from a technical standpoint, the most legal ruling from that case is that we have a right to an environment in the District of Oregon. Were that to be upheld and the plaintiffs to prevail on trial, there might be all sorts of new options available for Portland.

D. LASCARIS: While Portland's appeal is waiting in this case, in the one relating to current fossil fuels infrastructure, could other fossil fuel projects proceed toward construction in Portland?

NICK CALEB: It's very unclear right now, and we are worried that fossil fuel companies might try to submit applications just to vest those projects, in hopes that they get a successful outcome in the Court of Appeals, so we have been meeting with city officials ever since the adverse LUBA decision to try to get them to think about that, and maybe have some emergency rules put in place to prevent that from happening.

D. LASCARIS: Finally, when can we anticipate a hearing on this matter and a final resolution of the appeal?

NICK CALEB: Because this originated as a land use case, it actually will move faster than most appeals cases normally do in Oregon, and so we will ... The deadline to appeal is at the end of August, and from there we have a series of 30 day deadlines. And so, we should see hearings within a few months, and then when the Court of Appeals will rule is another question. It could be anywhere from three, six, to 12 months. Hopefully, it's sooner than later, because I think this is a really important case nationally. It's important that a proper court rule on this and give other states and local jurisdictions some kind of clarity over what local governments can do to restrict fossil fuel infrastructure.

We feel very strongly that it's highly logical that local governments be able to protect their residents from the dangers of the fossil fuel industry, which includes spills, explosions, derailments. We've seen a lot of that out in Oregon. Not to mention the climate impacts, and so again, we don't agree with the LUBA ruling and we think that we have a good chance on appeal.

D. LASCARIS: It's certainly an important story that The Real News will follow and we thank you for joining us today, Nicholas.

NICK CALEB: Absolutely. Thank you.

D. LASCARIS: This is Dimitri Lascaris for The Real News.


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