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  January 5, 2018

Oregon Court: Banning Fossil Fuel Facilities is Constitutional

An Oregon appeals court ruled that restricting fossil fuel infrastructure is constitutional, overruling a lower appeals court decision. It's an important victory in the fight against climate change, and for local self-determination, says Nicholas Caleb of the Center for Sustainable Economy
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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.


G. WILPERT: Welcome to The Real News Network. I'm Gregory Wilpert coming to you from Quito, Ecuador.

On Thursday, the Oregon Court of Appeals allowed the city of Portland, Oregon to move forward with a local law that bans all new fossil fuel infrastructure such as new port facilities for shipping coal and holding tanks for oil and natural gas. The law had been blocked by a Land Use Board of Appeals that declared the law to be unconstitutional. Advocates now say that the Oregon Appeals Court's decision to allow the law banning fossil fuels infrastructure to be implemented will allow other local governments to pursue similar policies that combat climate change.

Joining me to talk about this important decision is Nicholas Caleb. Nicholas joins us from Klamath Falls, Oregon. He is a staff attorney with The Center for a Sustainable Economy, which was a party to this lawsuit. Thanks for joining us today, Nicholas.

NICHOLAS CALEB: Thanks for having me.

G. WILPERT: First, tell us a little bit about what this Portland law is all about. Tell us more about what it intended to do and what its significance is.

NICHOLAS CALEB: In Portland and many port cities around the country, there are dangers of fossil fuel infrastructure from explosions, and spills, and air pollution, and you name it. The city of Portland decided that it wanted to be very proactive and stop adding to this risk. We had seen proposals for new propane export terminals in Portland that were rejected by activists. Instead of fighting these battles one by one, the city actually wanted to take a stand and say, "We're just not gonna do this type of development anymore. It's not good for Portland, and it's not good for the climate."

Over a period of about two years, the city passed resolutions and entered into a land use planning process that resulted in an ordinance called the Fossil Fuel Terminal Zoning Amendments. The Fossil Fuel Terminal Zoning Amendments did very much what you said in the introduction. They stopped the construction of large-scale fossil fuel infrastructure for storage and transport, which is a de facto ban on fossil fuel infrastructure. Immediately, big business interests at the Portland Business Alliance, which is basically the local chamber of commerce in Portland, and the oil industry at the Western States Petroleum Association sued us in land use court, and we lost that case originally.

G. WILPERT: Just tell us a little bit about why did you lose it. I mean what was the argument that it was unconstitutional? I mean sounds like I'm talking about a zoning issue that seems to be within the purview of city governments.

NICHOLAS CALEB: Yes, which is why we appealed it, of course. The argument was that because this was stopping an industry from adding new facilities, that it was discriminating against interstate commerce, basically, that a lot of the facilities that would have been sited would be energy for export because, in the Northwest, we're not a fossil-fuel-producing region, but we are seeing a lot of so-called pass-through fossil fuels that are going to Southeast Asian markets.

When you tally the amount of projects that were proposed to go through Oregon, Washington over the last five or six years, it would have been sort of apocalyptic levels of carbon pollution going through or region. Portland was the first community to try to battle this from the position of a municipal ordinance. We developed the ordinance to be resilient to legal challenge, and so when we lost that original case, we were very disappointed but also confident going into appeal.

G. WILPERT: Now the Oregon Appeals Court has overturned the Land Use Board's decision. What were the arguments on the side of the ... I mean your arguments and also the ones of the side of the court when it ruled in your favor?

NICHOLAS CALEB: Our argument was that local governments have very high power to protect the health and safety of their residents, and the fossil fuel industry and fossil fuel infrastructure poses health hazards in the form of spills, and explosions, and air quality like I mentioned before. But also, in the Northwest, we're often at enhanced danger because we have liquefaction zones where most of our fossil fuel infrastructure sits. In this big earthquake that we all expect to happen in the next 50 years, it'll be 9.0 or above, all of our critical energy infrastructure is sitting in liquefaction zones, and it'll be a disaster. It magnifies the disasters by many, many times. That was the basis for the ordinance, that we have the power to protect the health and safety of the residents of the community. In addition, we think that this is strong climate action at the same time. The court agreed that both of those were legitimate concerns that the city of Portland had.

G. WILPERT: What's going to happen now? I mean could the plaintiffs still appeal this decision to a higher court? If so, does this mean that Portland can't enforce the law until their appeal is complete?

NICHOLAS CALEB: Well, we expect that the other side will definitely appeal. We don't know for sure, but that's my expectation. It doesn't seem like they have any reason not to. If they did, it would go to the Oregon Supreme Court next. Then if they or us appealed from that, it would go to the United States Supreme Court, so this could be hung up in court for a while.

In the meantime, though, we believe that the city of Portland can actually reinstitute its ordinance. In addition to the constitutional questions, there were a few local land use provisions that the Land Use Board of Appeals found that the city of Portland ran afoul of. Those are not critical that we would have to start the whole entire process over, but we might have to hold some supplementary processes, and do some fact finding, and hold a couple of public hearings in order to build the record up and legitimize the process. Basically, we think that there's a path toward getting our fossil fuel ban up and running again in a very short amount of time.

G. WILPERT: What do you consider to be the larger consequences of the law and of the Appeals Court's decision? I mean what does it mean for communities elsewhere? Are other communities actually watching this case for that reason?

NICHOLAS CALEB: Yeah. We at The Center for a Sustainable Economy have been talking with communities all over the country who are facing dangerous infrastructure projects being proposed in their communities and are also concerned about the impacts of climate change. With the national government basically dismantling all environmental and climate laws, it's been up to states and local governments to try to innovate ways of slowing down the fossil fuel economy so that we can transition to a renewable-energy-based economy. There are all sorts of communities that are trying lawsuits and other sorts of regulations to slow down the growth of the fossil fuel economy.

We think that this is the most direct means of doing so, just preventing new infrastructure from being built, because we have to say no to the expansion of the fossil fuel industry before we can start turning the corner the other way. This is a signal to those communities that have been looking at Portland and saying, "Wow, that's interesting. It's elegant. We'd like to do it, but we're scared of being sued." Now they have a court that's actually ruled on this and said, "Look, this isn't running afoul of the Constitution, so as long as you're putting together smart, progressive, well-vetted policy that follows local land use policy and code, you should be fine as far as the Constitution goes."

G. WILPERT: Okay. Well, we'll definitely continue to follow this story as it develops and see what happens with the appeals process. I was speaking to Nicholas Caleb, a staff attorney at The Center for a Sustainable Economy. Thanks again for having joined us today, Nicholas.

NICHOLAS CALEB: Thanks for having me.

G. WILPERT: Thank you for watching The Real News Network.


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