Two winters ago, the city of Portland made history.
After years of work on climate resilience and efforts to lower the city’s carbon footprint, city officials took stock of the regional situation with the fossil fuel industry and unanimously passed a resolution to block the expansion of fossil fuel infrastructure – both within the city of Portland and in adjacent waters. The policy went into effect after another unanimous vote this past December, which finalized changes to city building codes.
The effort has been hailed by climate activists across the country, and sets a new precedent for how cities can lead against climate change. The policy also had the personal support of 350.org’s Bill McKibben, who helped popularize the scientific consensus five years ago that 80 percent of existing fossil fuel reserves need to stay in the ground to prevent irreversible climate change. In October, McKibben joined former mayor Charlie Hales in an Oregonian opinion piece, writing “Portland is once again out in front, positioned to do what climate-change experts say is necessary to hold off catastrophic climate disruption.”
FURTHER READING: 'Portland is doing remarkable things,' McKibben tells Street Roots
By adopting the policy, Portland became the first city in the country to pursue direct municipal action against the fossil fuel industry. But as of January that policy is being challenged at the Land Use Board of Appeals (LUBA), where the fossil fuel industry hopes to declare the policy illegal.
This past July, Vancouver, Wash., took a piece of Portland’s policy and banned the storage and handling of crude oil using city zoning law. Vancouver City Attorney E. Bronson Potter explains that the policy will not directly affect the massive Tesoro-Savage oil terminal, as state law in Washington pre-empts local law on projects of such size. But the law will prevent the company from building an adjacent refinery, and before permitting the terminal, Washington state will have to consider the fact that the project is no longer consistent with city zoning laws. Potter said there have been no legal complaints against the city’s new policy, and believes it stands on solid ground if challenges arise. “I’m confident that our ban on crude oil storage and handling facilities is enforceable,” Potter said.
“I think it’s pretty well established that cities through their zoning authority, do have the authority to allow or prohibit various types of uses,” he said. “Can you single out certain types of commodities and say you’re not going to allow those within your jurisdiction? I think if you’re treating in-state and out-of-state handlers of those commodities equally you can.”
A few days before Vancouver’s action, the city of Aberdeen, Wash., voted to ban the storage and handling of crude oil within the city. And on March 21, Whatcom County, near the Canadian border, renewed a 6-month moratorium on unrefined fossil fuels through Cherry Point as plans develop to re-route the controversial Kinder Morgan pipeline around the city of Burnaby in British Columbia and through Cherry Point, Wash.
Back in Portland, the fossil fuel appeal is being pushed by three groups: the Portland Business Alliance, the Columbia Pacific Building Trades Council (CPBTC), and the leader, the Western States Petroleum Association.
Their specific legal objection is not yet clear, as the coalition’s legal briefs will not be submitted until April 11.
Willy Myers of the CPBTC, the spokesperson for the groups suing the city, said the ban violates state land-use law by preventing fossil fuel development within the city of Portland.
More specifically, Myers warned of the economic hardship that would result if a landslide wiped out the Portland Airport’s storage container of jet fuel near Highway 30. Under the fossil fuel ban, Myers warned, a new storage facility would be difficult to build, and “a billion dollars in revenue” could potentially be lost from the delay.
The new rules also allow for the construction of new fossil fuel storage facilities when their capacity remains under 2 million gallons. The draft code also provided for 10 percent growth of existing storage capacity in order to incentivize upgrades for earthquake safety. But after hearing from terminal operators, who said this was not enough of an incentive to cover the cost of safety improvements, City Council deleted the provision and directed bureaus to study fire and building codes that would directly require seismic safety improvements. (Editor's note: Paragraph updated for clarity and correction.)
Myers said the CPBTC supports the transition away from fossil fuels, but did not provide comment on how a transition could happen, saying simply “I represent folks in the construction industry.”
The Portland Business Alliance declined to be interviewed for this article.
Across the U.S., examples abound of regulated industries attempting to sue local governments to prevent laws that affect their bottom-line. In the case of the fossil fuel industry, the need to experiment with local laws has become increasingly urgent.
In the summer of 2015 hot water in the Columbia River killed half the sockeye salmon run. In February a new study from the journal Geology found that 52,000 square miles of permafrost is disintegrating in Northwest Canada. Such permafrost is currently sequestering massive quantities of methane, which has a global warming potential 86 times that of carbon dioxide over a 20 year period. If such melting continues unabated, warming cycles around the globe could become unstoppable.
Taking account of such risks on a global and local scale, local governments in the Northwest have increasingly taken direct legal action against the fossil fuel industry.
This May voters in Coos County voters will consider Measure 6-162, which would make fossil fuel exports in Coos County illegal – and provide a referendum on exporting liquefied natural gas via Jordan Cove LNG and the Pacific Connector Pipeline. Veresen Inc. plans to spend $30 million in 2017 to promote the project while lobbying the White House, and stands opposed by a local coalition of environmentalists, tribal governments, and property owners opposed to eminent domain.
FURTHER READING: Jordan Cove LNG pipeline ‘a never-ending nightmare’
If voters approve the measure, Coos County would become the nation’s first to block an LNG export terminal – disrupting the commercial flow of fracked gas from the business end of the pipeline.
The fracked gas for the project would come from the Colorado Rockies, where many community members are rooting for the measure.
“When the bottom really fell out for domestic gas pricing, a lot of communities here in Colorado were hoping the economics would reduce the drilling,” said Chris Wilmeng, of Lafayette, Colo. “The price here is in a glut. They want to export this stuff, and Jordan Cove does exactly that.
“There’s wells next to high schools, in residential neighborhoods, hospitals,” Wilmeng said. “I mean the long and the short of it is that the industry does not see these communities. They see their shale.”
Wilmeng is a member of the Colorado Community Rights Network, an organization that supports communities and environmental initiatives against extractive industries. The network is linked to the Oregon Community Rights Network, which backs the Coos County initiative and four others on issues that range from aerial pesticide spraying in Lincoln County to genetically modified seeds in Benton County. One of these initiatives in Columbia County seeks to block the transport of coal and oil trains, as well as the expansion of fossil fuel power generation.
Colorado, with its own bountiful mix of nature and resources, has been on the front line in the local control debate for many years.
In 2014, a judge found that state laws facilitating gas extraction pre-empt local fracking bans in places like Fort Collins and Longmont, rendering them null and void. The Community Rights Network responded by appealing to the Colorado Supreme Court, and pushing a statewide amendment that ultimately failed to get the required signatures. After that, said Wilmeng, “the oil and gas industry ran their own ballot initiative to make it substantially harder to get on the ballot. People were severely misinformed about that, and it passed.” In 2016, the Supreme Court ruled again on the local fracking bans, again invalidating the ban.
In Oregon the same centralizing process appears to be in motion – during this year’s legislative session Rep. Cliff Bentz (D-Ontario) introduced House Bill 2480, which would take the ability to regulate fossil fuel infrastructure away from local governments and declare such decisions to be “vested solely in the Legislative Assembly.” The bill states it was introduced at the request of Pac/West – the same corporate lobbying group behind Coloradans for Responsible Energy Development, which Pac/West created in 2013 to “shift public opinion in favor of energy development,” according to its website.
Pac/West is headquartered in Wilsonville, Ore., with a second office in Denver, Colo.
“The American Lung Association gave our air an 'F' here in Colorado,” said Wilmeng, “and it’s widely attributed to oil and gas. It’s an extremely short-sighted industry. And it’s really the same with Jordan Cove. It’s industry that’s gonna need to see its end here, shortly.”
Other bills are working their way through the Oregon Legislature that could impose new regulations on fossil fuel transports. One would prohibit the construction, extension or use of a wharf for receipt and discharge of crude oil.
Back in Coos County, Mary Geddry of the Coos Commons Protection Council is proud to say her local measure has Veresen worried.
“The fact that they’re scared enough to form a political action committee and run a push poll shows that they’re nervous. Nationwide, oil and gas publications say the community rights movement is the largest threat to their industry,” she said.
In Columbia County, another community group is gathering the required 1,800 signatures to put their own Sustainable Energy Future ordinance on the ballot. If passed, this measure would block the transportation of oil trains and coal trains through Columbia County, and would also prohibit a proposed methanol plant there, according to spokesperson Brady Preheim.
Similar laws in Oregon have been pulled after receiving pre-filing challenges. One was an effort to block Jordan Cove LNG in Douglas County.
If a measure succeeds and is later challenged, it falls to the local government to defend it in court. This has created trouble in Colorado when city officials are hostile to a measure, a problem identified by Wilmeng when their local fracking bans have gone to court. That situation appears to be mirrored in Coos County, where local officials are largely pro-LNG.
Stacey McLaughlin, a supporter of the measure in Douglas County, said the timber industry has created a “company town” mentality across Oregon.
“They say, ‘What we have is natural resources, so we have to utilize them to grow the economy,” McLaughlin said.
But even if parts of this new batch of laws are struck down, it will be difficult to challenge the political reality that shaped them.
Nick Caleb, a legal fellow at the Center for Sustainable Economy, said Portland’s policy was designed to survive appeal, and can be re-written if it does not.
“I think the way the city defined health and safety made it a very strong policy, and to the extent that it affected interstate commerce it did so in a very reasonable way – especially when you add in the seismic issues in this area.”
Caleb says that Portland can likely shut down new fossil fuel infrastructure regardless of the specific reasoning that comes out of LUBA – largely due to the strength of the local movement.
“I think the community has embraced that this is where we’re going, and if it’s not this particular form of health and safety policy, it’s going to be another one that promotes health and safety along with the decline of the fossil fuel industry.”
Geddry, in Coos County, said that the new Republican administration is forcing localities to embrace self-government.
Portland City Commissioner Chloe Eudaly agreed.
“I know that these are conversations going on at every level of government: city, county, state, as well as our national delegation. They’re all thinking about how we can kind of steel ourselves against the effects of this administration. I think it makes sense to let cities decide what they’re going to do,” she said.
“What we’re being asked to do is to really figure out where we’re going to draw the line in the sand and say enough, no more,” Wilmeng said. "It’s a harsh place in history to live in. It’s scary. Unfortunately, given the scientific fact about climate change, it’s a question we’re all going to have to step up to.”
FURTHER READING: Street Roots' ongoing coverage of climate issues