Portland fossil-fuel ordinance could be headed to Oregon Supreme Court – Portland Business Journal

The fight over Portland’s ban on new bulk fossil-fuel terminals — often cited as a groundbreaking climate-change policy — might not be over.

Opponents have asked the Oregon Supreme Court to review a Court of Appeals decision that overturned a Land Use Board of Appeals ruling that the zoning ordinance was unconstitutional, among other issues.

The Columbia Pacific Building Trades Council, Portland Business Alliance and Western States Petroleum Association have been fighting the ordinance, adopted in late 2016.

The ordinance prohibited new fossil fuel terminals with a capacity greater than 2 million gallons and capped the size of existing terminals. It was aimed at export facilities and came in the wake of the city rejecting a proposed Pembina Pipeline Corp. propane terminal.

Opponents appealed the ordinance to LUBA, which said it violated the U.S. Constitution’s “dormant commerce clause” by discriminating against out-of-state fossil-fuel producers and refiners while accommodating storage for local uses.

The city appealed the decision and in January the Court of Appeals said LUBA got it wrong by likening refiners and exporters to end users.

But in their petition to the Supreme Court, the opponents said that was a misinterpretation of their discrimination argument.

"The natural consequence of the (ordinance) is that out-of-state end users will bear the cost of the restrictions in the form of reduced access to fuel with concomitantly higher fuel prices, while local end users will be," they said.

They urged the court to take up the appeal in part because the Portland ordinance has received so much attention.

"The Court of Appeals’ decision will have far-reaching consequences in Oregon and throughout the nation if permitted to stand," they wrote. "A Google search of the term ‘Portland Fossil Fuel Ordinance’ returns thousands of webpages and articles from across the country covering LUBA’s and the Court of Appeals’ decisions. The City’s ordinance has been described as ‘first of its kind,’ a ‘landmark decision,’ and a ‘roadmap’ for other local governments."

The Oregon Court of Appeals court did uphold aspects of the LUBA ruling, requiring the city to reimplement the ordinance, which the mayor vowed to do. A Bureau of Planning and Sustainability spokeswoman said Tuesday that the city has been waiting for the appeals process to play out before doing that.

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