In a decision that could send shock waves through the world of local climate action, an Oregon court has reversed Portland’s ban on new fossil fuel infrastructure, arguing that the city’s ordinance constitutes an unconstitutional overreach of local authority.
Environmental and public health groups defending the ordinance were quick to criticize the ruling, and reiterated their intent to work with the city of Portland to pass a different ordinance aimed at preventing the expansion of fossil fuel infrastructure.
“It’s an absurd and incorrect conclusion that Portland is powerless to protect its residents from dangerous fossil fuel infrastructure,” Nicholas Caleb, staff attorney at Center for Sustainable Economy, said in a statement. “We will continue to fight to make sure Portland’s residents and environment are protected from the risk of spills, explosions, derailments, and pollution that are inherent in the dirty practices of the fossil fuel industry.”
Located along existing rail routes and dotted with ports, the West Coast has been a primary target for fossil fuel companies looking to ship coal from the Powder River Basin or oil from the Bakken fields of North Dakota to overseas markets. In 2012, Oregon, Washington, and British Columbia collectively had 26 proposals for massive fossil fuel infrastructure — infrastructure that, if constructed, would have accounted as much carbon annually as five Keystone XL pipelines.
Numerous studies have clearly shown that in order to avoid the worst consequences of climate change, a majority of the world’s fossil fuel reserves will need to remain in the ground. Building new infrastructure runs contrary to that goal, because it locks both states and markets into years of fossil fuel extraction and transport.
In opposition to the idea of fossil fuel export terminals in general — and one proposal for a large-scale propane terminal specifically — a coalition of community groups, including climate and environmental activists, public health groups, and neighborhood organizations, submitted a resolution to the city council in 2015 asking that the city oppose any new fossil fuel infrastructure. That resolution passed unanimously, and was codified into the city’s zoning code a year later.
The ordinance, adopted by the Portland City Council in December of 2016, created a new land use class for fossil fuel terminals in the city’s zoning code, and prohibited the construction or expansion of large-scale fossil fuel infrastructure. The class was defined as sites that have a storage capacity of greater than 2 million gallons of fossil fuel and rely on access via train, shipping vessel, or pipeline to transfer and transport those fuels — things like oil terminals, natural gas terminals, or coal terminals.
The ordinance was celebrated by a coalition of community groups, from neighborhood associations to climate activists. But it garnered staunch opposition from the fossil fuel industry and parts of the Portland business community, which subsequently challenged the ordinance before the Oregon Land Use Board of Appeals.
On Wednesday night, the board of appeals sided with fossil fuel interests and businesses, finding that the zoning code violated the Commerce Clause of the U.S. Constitution, which holds that only Congress has the power to regulate interstate commerce.
“We do not believe that the city can, consistent with the dormant Commerce Clause, deliberately attempt to slow or obstruct the flow of fossil fuels from other states to consumers in other states or countries with the apparent goal of reducing generation of greenhouse gases elsewhere in the world, and justify that attempt as a legitimate local interest,” Tod Bassham, board member for the Oregon Land Use Board of Appeals, wrote in his decision.
Attorneys for the city of Portland have a few weeks to decide whether to seek an appeal of the decision before the Oregon Court of Appeals, something that current mayor Ted Wheeler said the city is considering.
In a statement released Wednesday, Wheeler reiterated his support for the ordinance, saying that he remains committed to ensuring Portland remains on the vanguard of progressive climate action.
“This decision is disappointing and goes against the interests of our community,” Wheeler said in a statement. “It is incumbent upon us to protect our residents from the enormous risks posed by fossil fuels. The city is reviewing the ruling and exploring our options, including an appeal. Additionally, we will continue to work with environmental, energy, and resiliency experts to ensure Portland remains a leader on these issues.”
Other communities, inspired by Portland, have passed or are currently considering similar ordinances aimed at limiting or prohibiting the kinds of fossil fuel infrastructure allowed under local land use laws. Whatcom County, which had been the site of the largest proposed coal export terminal in the North America, recently passed an emergency moratorium on shipments of unrefined fossil fuel through its port at Cherry Point, citing in part the Portland ordinance. And other major West Coast ports, like Seattle and Tacoma, are currently considering their own moratoriums or bans on certain kinds of fossil fuel infrastructure by amending local land use laws.
“We really do hope that other communities throughout the Northwest and throughout the United States try to find methods like this to protect their residents, protect the climate, and curtail the use of fossil fuel infrastructure,” Dan Serres, conservation director with Columbia Riverkeeper, told ThinkProgress.