Ball’s in (appeals) court; PDX contests LUBA decision

The city of Portland aims to overturn the land use board’s ruling on the fossil fuel terminal ban.

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The city council voted unanimously on Wednesday to send the case to the Oregon Court of Appeals. The decision comes on the heels of a July 19 ruling by the Oregon Land Use Board of Appeals, which found a city ordinance barring new fossil fuel storage facilities was unconstitutional.

LUBA — or at least the one voting member of the board, as two of the three members recused themselves — ruled Portland’s ordinance violated the commerce clause, which grants Congress the power to regulate trade between the states.

Commissioners disagree with that analysis.

“I am not convinced we are in violation of (the clause),” said Commissioner Chloe Eudaly during Wednesday’s meeting. “I am ready and willing to fight back against the state interfering in our ability to protect the environment and to protect our residents and make what we think are the best decisions for our city.”

LUBA needs to set standards “that protect people and not profit,” Eudaly said.

The land use board reviewed the ordinance after the Western States Petroleum Association, Columbia Pacific Building Trades Council and the Portland Business Alliance appealed Portland’s decision.

RELATED STORY: PDX battle over fossil fuel heats up

Commissioner Nick Fish said LUBA’s decision could hinder future climate change work.

“The dormant commerce clause evaluation could represent a challenge to a lot of the regulating we’re doing at the local level,” Fish said. “Someone from outside of our community can claim that it somehow interferes with intestate commerce and therefore try to limit our ability to legislate local community standards.”

Portland’s climate agenda is “ambitious,” said Fish. Since fossil fuel regulations are likely to come up again, it’s important to set precedent now, he said.

The Portland Business Alliance issued the following statement: “We agree with the City of Portland that we should all be working together to address the issue of climate change. The Portland Business Alliance is looking forward to working with the City on policy that is both legal and in line with the constitution.”

The case now moves to the Oregon Court of Appeals, but a hearing date has not been set.