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Activists and Portland Mayor Charlie Hales standing with a "Break Free from Fossil Fuels" banner.

Portland’s Fossil Fuel Infrastructure Restrictions Do Not Violate the US Constitution

Oregon Court of Appeals Reverses Lower Court’s Decision

Today, the Oregon Court of Appeals reversed, in large part, a Land Use Board of Appeals (LUBA) decision that invalidated Portland’s landmark Fossil Fuel Terminal Zoning Amendments, passed unanimously in December 2016. The Court ruled that Portland did not violate the Dormant Commerce Clause of the U.S. Constitution. The Court’s decision opens the door for local governments to continue to take meaningful action to combat climate change.

Last August, the Portland City Council unanimously voted to appeal LUBA’s decision, which struck down the city’s ordinance. A coalition of organizations represented by the Crag Law Center, including Oregon Physicians for Social Responsibility, Center for Sustainable Economy, Columbia Riverkeeper, and Audubon Society of Portland, intervened to support the city’s defense of the fossil fuel ordinance.

The Court of Appeals also reversed LUBA’s ruling that the ordinance violated Statewide Planning Goal 12, which governs transportation planning. The Court concluded that the ordinance does not impact transportation facilities or the flow of goods and services in the local and regional economy. The Court sustained LUBA’s ruling that Portland violated Goal 2 of Oregon’s statewide planning goals. The City of Portland can cure this defect through additional procedure and reinstate the Fossil Fuel Terminal Zoning Amendments.

“We’re thrilled. Today’s decision affirms that Portland and other communities can implement innovative protections to counter threats to human health and safety from dangerous fossil fuel infrastructure, ” stated Regna Merritt of Oregon Physicians for Social Responsibility.

“As we feel the effects of climate change, from forest fires to ice storms, the City of Portland and its grassroots climate activists are leading the way on solutions,” said Mia Reback lead organizer for 350PDX. “Today’s decision allows Portland to continue its internationally recognized work to stop fossil fuels, reduce greenhouse gases, and ensure a justice based transition to 100% renewable energy.”

“The Court’s decision confirms the City’s ability to stand up for the health, safety, and environment of its residents by restricting dangerous developments such as new oil train terminals,” said Dan Serres, Conservation Director of Columbia Riverkeeper.

“Today’s decision to uphold the landmark policy to restrict Fossil Fuel development is a huge win for the City, its residents and anyone concerned about ensuring that local jurisdictions are able to maintain the ability to protect their communities and fight climate change,” said Bob Sallinger, Conservation Director for Portland Audubon. “It is disappointing that the Portland Business Alliance would join Big Oil in trying to reverse critically important efforts to protect our local environment.”

“This is an important signal to other local governments that they can protect their residents from the many dangers of the fossil fuel industry,” said Nicholas Caleb, the Staff Attorney at the Center for Sustainable Economy. “Many other municipal governments were waiting on this decision to follow Portland’s lead and continue to fight together for a healthy climate system and truly sustainable economy.”

“We are encouraged by the Court’s rejection of the fossil fuel industry’s effort to defeat local action to protect our climate and communities from the dangers of fossil fuels,” said Maura Fahey, Staff Attorney at Crag Law Center. “Right now, it is up to local communities to stand up for our future and to push back against the fossil fuel industry.”


Read the opinion here – http://www.publications.ojd.state.or.us/docs/A165618.pdf

Oregon Physicians for Social Responsibility, Portland Audubon Society, Columbia Riverkeeper, and Center for Sustainable Economy are represented in this case by Crag Law Center, a nonprofit public interest environmental law organization.

Following Portland’s Lead, Seattle Calls for No New Fossil Fuel Infrastructure

CSE Staff Attorney Nick Caleb in front of Portland City Hall Photo credit: Mia Reback

On June 12, 2017, the Seattle City Council unanimously passed a resolution for no new fossil fuel infrastructure, in both the city of Seattle and urged the state of Washington, home to the nation’s largest proposed oil train terminal in Vancouver, WA, to do the same. Less than six months earlier, grassroots activists including many members of the Climate Action Coalition, in Portland, OR pushed the City of Portland to pass the strongest ordinance in the country calling for no new fossil fuel infrastructure.

The Sustainable Energy & Economy Network (SEEN), a project of the Oregon-based Center for Sustainable Economy, launched a campaign shortly after Portland passed its first resolution opposing new fossil fuel infrastructure in 2015 urging elected officials to support Portland’s resolution for no new fossil fuel infrastructure and a just transition for workers, and pledge to do the same in their jurisdictions. SEEN succeeded in getting 39 elected officials to sign and pledge to put in place similar restrictions in their jurisdictions.  Among the signatories in December 2015 was Seattle City Council Kshama Sawant.

The resolution that passed in Seattle was passed with the strong support from local activists with 350Seattle, among others, and specifically cited Portland’s fossil fuel terminal zoning amendments and commits Seattle to enforcing the Paris Climate Accords as an additional justification for their call for no new fossil fuel infrastructure. The resolution reads, in part: The City of Portland, OR, has passed an ordinance prohibiting the construction of all new fossil fuel projects in the City, and when passing the ordinance, Portland Mayor Hailes stated: ‘we can build part of a green wall on the West Coast by saying we aren’t going to have these facilities in our city.'”

“We worked very hard in Portland over several years to push our City Council to say no to new fossil fuel infrastructure. We hoped that others in our region and around the nation would follow suit,” said SEEN founder and CSE Climate Justice Program Director Daphne Wysham. “This is the kind of no nonsense, bottom-up, grassroots action and bold local leadership we need everywhere if we are to meet and exceed the terms of the Paris Accords. With record temperatures, violent storms and weather-related crop failure and drought around the world, we urgently need every city in the world to follow Portland’s example.”

“Seattle’s decision to call for Washington State to reject fossil fuel infrastructure proposals as well as investigating local code changes to prevent new projects locally is an extremely welcome development,” said CSE Staff Attorney Nick Caleb. “We will help Seattle however we can and we encourage other jurisdictions to join in and say no to new fossil fuel infrastructure.”

To support our work, join the SEEN activist network and help us take local action everywhere to uphold the Paris Accords, and push for an end to new fossil fuel infrastructure, throughout North America, visit www.seen.org For more information, write: info@sustainable-economy.org or visit www.nonewffi.org

Feds Deny LNG Export Through Oregon – Developer Turns to Trump


Students rally in opposition to the LNG pipeline at the Oregon state capitol. Photo: Rick Rappaport.

by Ted Gleichman

The Federal Energy Regulatory Commission (FERC) has conclusively rejected the only remaining US West Coast plan to ship liquefied natural gas (LNG) from Canada and the Rockies to Asia. On December 9, 2016, FERC commissioners announced that they had again voted unanimously, 3-0, to refuse federal approval for the $7.6 billion Jordan Cove Energy Project export terminal and the Pacific Connector Gas Pipeline (PCGP).

Jordan Cove and PCGP are owned by Veresen, Inc., a mid-sized Canadian fossil fuel company trying to use LNG export to catapult into the ranks of the energy big-leagues. On December 15, Jordan Cove announced that they expect that Trump appointees to FERC will reverse the decision, so they intend to restructure the project and reapply for federal approval.

Here’s why Veresen thinks that could work:

FERC is chartered for five members serving five-year terms, and they must be divided between the two major parties (or unaffiliated). Two Republican appointees have completed their terms and those seats are vacant. The three remaining commissioners are all Democrats appointed by President Obama. Because of Senate GOP refusals to consider Administration appointees, the White House did not propose anyone to fill the two GOP vacancies. (Obviously, the expectation was that the Hillary Clinton administration would find two moderate Republicans, to be considered by a Senate that seemed likely to be controlled by Democrats.)

The Trump team will nominate for these two vacancies, and select one of those two to become FERC chair. Presumably, that will happen sometime in the first half of 2017. Then, one of the current Democratic commissioners completes her term June 30. When that vacancy is filled by Trump, his people will constitute a majority. By mid-2019, all five members will be Trump appointees.

FERC’s original ruling against this fracked-gas export project came March 11, 2016, in a 4-0 vote – even the last GOP commissioner opposed Jordan Cove and PCGP. The December 9 decision denied Veresen requests to reopen the federal approval process.

This is FERC’s first-ever LNG export rejection. The agency is funded through back-charging its costs as fees to the energy industry, so it is considered a zero-budget entity for the overstressed federal budget process. FERC is notorious for its easy approvals of dirty fossil fuel projects, making this two-part verdict all the more striking.

FERC’s unprecedented double denial needs to be seen through the frame of an 11-year coordinated grassroots campaign. Dozens of organizations, supporting hundreds of outraged landowners along the pipeline route, have brought together thousands of people all over Oregon to fight this LNG terminal and pipeline.

The pipeline would run 232 miles across four counties in southwest Oregon, slashing a clearcut the width of an interstate highway across two mountain ranges, five rivers, and 400-plus wetlands and waterways. It would terminate at the Pacific Ocean in Coos Bay, in a fragile estuary inlet. There, the largest dredging project in Oregon coastal history would reconstruct a sand spit for a massive industrial plant – destroying oyster beds and fisheries.

The plan FERC rejected required a massive new 420-megawatt gas-fired power plant, solely dedicated to Jordan Cove, to cool the fracked gas to minus-261 degrees Fahrenheit, liquefying it for tanker shipping across the Pacific. That plant would have been the largest single carbon emitter in Oregon.

But along with announcing that they would reapply to FERC, Veresen pulled their request to Oregon to approve the new power plant. They said that they would build gas turbines within the liquefaction plant to cool the gas. This may be cheaper for them to construct, but may emit even more carbon dioxide into the atmosphere.  We’ll be watching as they put out new detailed plans.

All this is planned for the most dangerous earthquake and tsunami zone in North America, the Cascadia subduction zone. The region is overdue for a earthquake that is guaranteed to be the largest in U.S. history. The Cascadia fault lines crack at a minimum of Magnitude 8, and can exceed Magnitude 9. The earthquake zone ruptures on an average of every 250 years; the last time was 317 years ago, in 1700. The tsunami wiped out every Indigenous coastal village from Northern California to Vancouver Island.

Veresen has presented itself to Oregon stakeholders and elected officials as an inevitable success. Financially, though, Jordan Cove and PCGP are arguably the weakest of some three dozen multi-billion dollar North American LNG export facilities, proposedapproved, or already operating.

FERC rejected Veresen’s plans because the company has no guaranteed contracts to sell the fracked gas overseas. Developers must show a so-called “public benefit” for the people of the United States, and FERC defines that to be determined by approval by the market: If a developer can sell a planned fossil fuel product, they’re good to go. FERC had warned the Calgary-based company for years that guaranteed contracts would be critical for permission to move ahead, with specific requests for progress reports – but got back only vague promises that Veresen was unable to fulfill.

That bottom line requirement was compounded by Veresen’s dismal record in negotiating construction easements from hundreds of landowners along the pipeline route. By the March 11 denial, PCGP could show FERC easements from only 10% of ranchers, farmers, and other private-sector landowners.


Most land owners along the proposed pipeline route rare challenging the notion that eminent domain should be given to a foreign corporation that intends to export the gas. Photo: Ted Gleichman

FERC has the power to authorize eminent domain against landowners. This controversial and destructive tool in fracked-gas pipeline development has led to bitter struggles all over the country. Developers typically have to negotiate about 80 percent consent by affected landowners before FERC is comfortable authorizing eminent domain against hold-out landowners and local communities. Forced deprivation of property rights is no small matter.

Along the PCGP route, landowners and their environmentalist supporters have fought back hard, pledging resistance. According to FERC, the refusal of this enormous majority of landowners along a pipeline route to sign on was unprecedented. In the March 11 and December 9 announcements, FERC detailed deep concern about using unheard-of levels of eminent domain against 90 percent of private landowners for a project that could not demonstrate a “public benefit.”

The most difficult public issue for project opponents has of course been jobs. The developer can claim accurately that billions of dollars of equipment manufacturing and project construction will generate thousands of temporary living-wage jobs. But jobs that ravage communities and public lands and contribute massively to climate change are not “good” jobs. So simultaneously, we consistently advocate for genuine good jobs, sustainable jobs, converting our state to clean energy and rebuilding our infrastructure for earthquake preparedness and other urgent needs.

As Veresen showed with the announcement that they will now rely on Trump, the battle is not over. It will take the company several months to assemble a new application for FERC and other agencies; that will launch a renewed environmental impact statement (EIS) process. Veresen contends that their September 2015 Final EIS from FERC is still valid, but that is public spin.  It still exists, for a project that has been denied, like an obsolete law.  They can recycle much of it for their new application, but big pieces of it are obsolete – or were environmentally-flawed when written. Oregon continues to process state permit requests, but our coalition is fighting those effectively too.

For now, some 12 years since this Canadian company came to Oregon, Veresen has no clear path to construction: FERC has taken them off the federal map. Even a Trump-controlled FERC has to follow the law – although we can expect them to push against their legal obligations. We will push back at each step in a federal process that would likely take two years to get to another FERC decision. In the meantime, we will triumph over them in local and state decision-making.

In a country filled with critically-important fights to “Keep It In the Ground,” this battle is one of the most consequential. One way or another, grassroots Oregonians are going to continue to defeat dirty, dangerous fossil fuels and build the just transition.

Activists and Portland Mayor Charlie Hales standing with a "Break Free from Fossil Fuels" banner.

This City Just Banned Virtually All New Dirty-Energy Infrastructure


Portland activists celebrate with Mayor Hales (in tie) the passage of the City ordinance opposing all new fossil fuel infrastructure. Photo: Rick Rappaport.

Shepard Flat Wind Farm

Six Critical Improvements for Oregon’s Healthy Climate Bill

Shepard Flat Wind Farm

Problem #1: The timber industry, which is the second largest source of greenhouse gas (GHG) emissions in the state is not counted as a source of greenhouse gas emissions to be constrained.1

Solution: The Healthy Climate Bill must fully account for ALL greenhouse gas emissions in Oregon, including the timber industry.

Problem #2: In its latest amended form, carbon offsets could represent up to 50 percent of all emissions “reductions” in the HCB. In California, critics were concerned that “only 8 percent” of emissions reductions from carbon offsets could actually represent 85% of the overall emissions reductions2 . The integrity of carbon offsets are difficult, if not impossible, to verify, according to numerous studies3, and can actually result in emissions increases overall.

Solution: No carbon offsets.

Problem #3: The largest source of GHG emissions, the transportation sector, gets a 10-year delay in addressing its significant emissions, under the rationale that the Clean Fuels program will substitute for action in the transportation sector. However, the Clean Fuels Program uses a methodology for calculating its emissions that is in dispute.4 Until that methodology is fully vetted by the scientific community, it should not be assumed to result in emissions reductions over a business-as-usual scenario

Solution: Provide full, transparent greenhouse gas accounting for all fuels consumed in the state, including “clean fuels” and offer no delay in emissions reductions from the transportation sector.

Problem #4: An undisclosed percentage of the emissions credits will be given away for free to utilities. When this was done in the EU Emissions Trading Scheme, this meant enormous profits for the polluting utilities, and rates going up for consumers.5

Solution: No free permits to pollute.

Problem #5: The bill includes exemptions for “trade-sensitive” industries, although there is no definition of what a “trade- sensitive” industry is. This exemption could be a giant loophole, depending on how it is defined, offering unfair favorable treatment to multinational corporations over corporations based in Oregon.

Solution: No exemptions for any industries.

Problem #6: The funds set up by this bill– the Climate Investment Fund, the Just Transition Fund — will have a critical role in dispensing funds, yet there is no specificity in who will control those funds.

Solution: Ensure the funds set up by the Healthy Climate Bill are managed transparently and with democratically elected oversight and control over their disbursal.


1 See “Clearcutting our Carbon Accounts: How State and private forest practices are subverting Oregon’s climate agenda,” by Dr. John Talberth, Center for Sustainable Economy et al.

2 See New York Times, August 8, 2011, “Offsets Could Make Up 85% of Calif.’s Cap-And-Trade Program,” by Annie Mulkern.

3 See: “Carbon Offsets are a Bridge Too Far in the Tradable Property Rights Revolution,” by Tyler McNish, Harvard Environmental Law Review, August 1, 2012; and “Options for Addressing Challenges to Carbon Offset Quality,” GAO-11-345: Publicly Released: Mar 17, 2011.

4 See “Oregon Takes Big Step on Clean Fuels Program, but Corn Ethanol Concession Needs to be Cut,” by Simon Mui, NRDC, Dec. 9, 2015.

5 See “The Effects and Side Effects of the EU Emissions Trading Scheme,” by Timothy Laing et al, April 15, 2014.

Photo credit: Wikipedia

In Battle Over Fracked Propane Gas Exports, David Beats Goliath

It was the classic David and Goliath battle: On one side, school children and “Raging Grannies.” On the other, the $6 billion Pembina Pipeline Corporation, the largest pipeline company in the Canadian tar sands, and a plan to build the largest private investment project in Portland, OR, history– a $500 million propane export terminal.Native Mary

What started out as a battle heavily skewed in favor of “Goliath”—with Portland’s Mayor Charlie Hales welcoming Pembina with open arms—10 months later, turned into a complete about-face, with the mayor shunning the corporation, and with Pembina all but high-tailing it back to Alberta. (At the time of this writing, Pembina was still holding out hope of building its propane terminal in Portland, but few others, except some members of the Port Commission, were.)

There were a number of factors that played into the hand of this surprising reversal of fortune. For starters, the battle took place in Portland—a town that doesn’t take kindly to the fossil fuel industry, much less a corporation that made its billions on the tar sands. Cities don’t get much greener than Portland, and fossil fuels don’t get much dirtier than the tar sands.

Then there was the fact that, unbeknownst to most everyone—including, apparently, Mayor Hales and Pembina—there was the need to amend an obscure environmental overlay code in order to allow Pembina’s project to proceed. It was this amendment process, which required public participation in a discussion that otherwise might have taken place behind closed doors, that was the Achilles’ heel in Pembina’s plans. Loudly and clearly, overwhelmingly and repeatedly, late into the evening, and early in the morning, Portland residents showed up and made it clear they did not want any amendment that would allow Pembina to set up shop in Portland.

But the victory included far more important factors than these two.  This was an amazing team effort. Together with more established groups like Columbia Riverkeeper and Audubon Society of Portland, the newly established Climate Action Coalition (CAC) was a major force in helping bring people out to these hearings. Coalition member, Nick Caleb with Our Children’s Trust ensured the riveting testimony of students at Sunnyside Environmental School was a part of the hearings. Another coalition member, Dr. Kelly O’Hanley, a retired physician who has taught medicine at Stanford and Harvard, and Greenpeace volunteer, provided expert testimony on the health effects of the rail transport. Rising Tide members reached out to ensure First Nations and Native American voices were heard at public hearings. 350PDX was instrumental in ensuring broad attendance at all of the rallies and hearings. The Portland Unitarian Universalists provided meeting space and critical support throughout. The Center for Sustainable Economy together with its project, the Sustainable Energy & Economy Network, helped with media, press outreach, and testimony. Together, our participation in public hearings, our outreach and our actions were as varied as our city’s population.Pembino2

Hearings included testimony from Longshoremen, people of faith, tropical disease specialists from Oregon Health and Sciences University, physicists and other scientists affiliated with the Northwest Citizen Science Initiative with expertise on thermal blasts and earthquake subduction zones—all opposed to the terminal.

Outreach included retirees working their political connections, artists who created amazing posters and likenesses of the mayor distributed around town chiding him for his support of the fossil fuel industry, or people who spent hours bicycling the “tank of doom” –a likeness of so-called “bomb trains”– to street fairs and rallies together with informational flyers.

Actions included civil disobedience at City Council meetings with CAC members momentarily taking the stage with larger than life-sized heads of City Commissioners, reminding them of their past statements on climate change, all staged respectfully and videotaped before a shocked audience for widespread distribution to the media.

We did it all with mostly volunteer labor, out of love for the city and the people we share it with, and out of love for the planet whose fever we want to cool. We did it and we won. But we have lots more work to do. Within the Portland area Climate Action Coalition, we have created a dynamic that is at least as precious as our David-like victory over Goliath-like Pembina. That dynamic includes a willingness to engage in non-violent civil disobedience, should the occasion call for it, and extends to empowering all who care about our planet and future generations to find a role within our coalition that can help us expand this movement further. As Naomi Klein writes regarding activism on climate change in her book, “This Changes Everything,” “To change everything, we need everyone.” With this kind of generosity of spirit, there’s no stopping us. Goliath or no, we will win. We must win.

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