Earlier this year in Oregon, as they did in California several years ago, the American Fuel and Petrochemical Manufacturers (AFPM), together with American Trucking Alliance (ATA) and Consumer Energy Alliance (CEA), filed a federal lawsuit to try and derail a cutting-edge, scientifically-based, and legally sound clean fuel standard. Not discouraged by their recent losses challenging California’s clean fuels program (the Low Carbon Fuel Standard, or LCFS) in the Ninth Circuit Court of Appeals and U.S. Supreme Court, the plaintiffs have proceeded with nearly identical constitutional law arguments – simply recycling issues and claims that were rejected many months ago.
Like the California LCFS, the Oregon Clean Fuels Program reduces the carbon intensity of transportation fuels by requiring fuel sold in state to have reduced lifecycle greenhouse gas (GHG) emissions. Compliance is based on the schedule developed by the Oregon Department of Environmental Protection and designed to spur innovation in the fuel sector, as the California Low Carbon Fuel Standard has already done. The fuels program itself does not choose a formula for carbon reduction, but allows the market to find the best path forward.
A significant portion of Oregon’s climate pollution comes from the use of gasoline and diesel in transportation, as it does in many other U.S. states, and it’s high time for Oregonians to have access to cleaner burning, lower carbon alternative fuels. Once in use, these alternatives not only cut climate pollution, they also deliver reduced emissions of multiple air contaminants that damage the health of the public while also improving energy security. In light of these substantial benefits to the people and economy of Oregon, on March 12, 2015, Governor Kate Brown signed a bill passed by the state legislature that removes the sunset date established in the 2009 law, allowing the Oregon Clean Fuels Program to move forward unimpeded.
AFPM’s attack on the Oregon program comes despite a comprehensive decision from the Ninth Circuit Court of Appeals (whose territory covers both Oregon and California) that rejected many similar arguments against the California LCFS. In its decision, the Ninth Circuit emphasized that “California should be encouraged to continue and to expand its efforts to find a workable solution to lower carbon emissions, or to slow their rise. If no such solution is found, California residents and people worldwide will suffer great harm. We will not at the outset block California from developing this innovative, nondiscriminatory regulation to impede global warming.”
Now it is Oregon’s turn to innovate, and it is imperative the state be allowed to move forward to deliver low carbon solutions to all Oregonians. To further this effort, recently Environmental Defense Fund (EDF) and four other environmental NGOs were granted leave to participate in the case, joining the states of California and Washington as intervenor-defendants supporting the Oregon Clean Fuels Program.
That AFPM, et al., seek to recycle previously rejected legal arguments in an effort to derail Oregon’s Clean Fuels Standard is not surprising. After all, alternative fuels like natural gas and biogas, advanced biofuels, electricity, and hydrogen take away from the market share traditionally occupied by gas and diesel producers. And, since these fuels cut local pollution, diversify the fuel mix, and give consumers more and better options, it’s also no surprise environmental groups and the other states in the pacific coast fuel market have stepped up to help defend the suit.
Given the action taken by Oregon’s legislature and governor, along with the past court opinions on many of the legal issues at play, it begs the question: shouldn’t these companies focus their attention on innovating less-polluting fuels rather than litigating to derail these policies?