Trade groups appeal Ore. clean fuel standard

Source: Pamela King, E&E News reporter • Posted: Thursday, January 10, 2019

A coalition of trade associations this week presented its challenge of Oregon’s low-carbon fuel program to the Supreme Court.

Led by the American Fuel & Petrochemical Manufacturers, the groups contend that the Beaver State’s low-carbon fuel standard interferes with interstate commerce and is pre-empted by federal law (Climatewire, March 24, 2015). The petitioners’ arguments were previously struck down in federal district court and in the 9th U.S. Circuit Court of Appeals.

The groups contend that the 9th Circuit’s ruling conflicts with other appellate court findings on the constitutionality of state initiatives that have impact beyond state borders.

“Resolution of these conflicts is critically important because they raise core issues of state sovereignty inherent in the Constitution’s structure,” according to the petition for a writ of certiorari.

Under the Oregon program, a life-cycle emissions analysis determines fuels’ carbon intensity values. State fuel producers must then either produce or import in accordance with the standard or purchase credits on less carbon-intense fuels.

The standard resembles California’s low-carbon fuel standard, which the 9th Circuit upheld in 2013. The court cited its ruling in that case in its dismissal last year of the claims against the Oregon program.

“While the decision largely recycles the Ninth Circuit’s 2013 decision and subsequent denial of hearing en banc, it also amplifies those prior decisions’ conclusions that local economic benefits do not render a state climate policy invalid under the dormant Commerce Clause,” according to the State Power Project, an initiative of Harvard Law School’s electricity program.

Supreme Court justices in 2014 denied certiorari in the California challenge.

American Trucking Associations Inc. and Consumer Energy Alliance are also listed as petitioners in the Oregon case.