Petroleum, trucking groups sue Ore. officials over clean fuel rule 

Source: Debra Kahn, E&E reporter • Posted: Wednesday, March 25, 2015

The petroleum refining industry’s main lobbying group filed suit yesterday against Oregon’s low-carbon fuel standard, alleging that it violates the U.S. Constitution by discriminating against out-of-state fuels.

American Fuel and Petrochemical Manufacturers was joined by the American Trucking Associations and the Consumer Energy Alliance in the lawsuit, filed in the U.S. District Court for the District of Oregon.

The suit claims that the rule — which mandates a 10 percent cut to the carbon content of fuels sold in-state by 2025 — violates the Constitution’s “dormant commerce clause,” which has been interpreted to prevent states from passing laws that discriminate against interstate economic activity. It also claims that Oregon’s program is pre-empted by the federal renewable fuel standard, the Energy Policy Act of 2005 and the Energy Independence and Security Act of 2007, as well as the Clean Air Act, which declines to regulate methane emissions.

Gov. Kate Brown (D) signed a bill earlier this month, S.B. 324, that lifted a sunset date of 2015 for the program. Oregon is the second state in the nation to adopt a state fuel standard, and its approach shares much in common with that of California, whose standard has been in effect since 2010 (ClimateWire, March 13).

The suit names Brown as a defendant, as well as Attorney General Ellen Rosenblum (D), a number of officials at the Oregon Department of Environmental Quality and members of the state’s governor-appointed Environmental Quality Commission.

“Greenhouse gas emissions have the same impact regardless of where they are emitted, and forcing the consumption of low-carbon fuels in Oregon — or in any state — will not reduce global carbon emissions due to fuel shuffling,” said AFPM General Counsel Rich Moskowitz.

A DEQ staffer named as a defendant declined to comment on the suit. “We just found out about it, so obviously we have to take a look at it,” said Air Quality Planning Manager David Collier.

California has largely fended off similar challenges against its own program, which began in 2009. However, compliance has been frozen at 2013 levels. The California Air Resources Board plans to readopt its program this summer in order to satisfy the California Court of Appeal’s ruling that it violated the California Environmental Quality Act by finishing the rule before completing a state-mandated analysis of the program’s environmental effects.

California’s suit from AFPM is still pending in the Eastern District of California, to which it was remanded after the Supreme Court declined to take the case.