Portland, Oregon Wins Court Battle to Ban New Oil Infrastructure

August 3, 2018

In a big win for the City of Portland, Oregon, the Oregon Court of Appeals issued a ruling that the city had not violated the U.S. Constitution's Commerce Clause by voting to ban any new fossil fuel terminals within its borders.

“This is a major victory for the climate and our communities,” said Maura Fahey, staff attorney at Crag Law Center, which represented environmental groups intervening in the case, in a statement. “Industry couldn’t even get its foot in the door of the courtroom to try to overturn the City’s landmark law. This sends a powerful message to local communities that now is the time to take action to protect our future.”

This ruling could have important implications for other communities fighting fossil fuel projects because the court ruled that the city's ban did not violate the Commerce Clause, which is the main argument the oil industry has used against bans like the ones in Portland, Oregon and other cities.

The Commerce Clause gives Congress the sole power to regulate interstate and foreign trade, and oil companies have argued that bans like the one in Portland are impacting interstate trade. With this ruling, the Oregon Court of Appeals has dealt a significant blow to that legal argument.

“This decision sends an important message at a time, when our federal government is dropping the ball on climate change, that cities can and will lead,” said Bob Sallinger, Conservation Director at Portland Audubon Society.

Port Cities Targeted by Industry for Exports

The Canadian tar sands industry has been looking for more ways to get its product to foreign markets, especially after the cancellation of TransCanada's Energy East pipeline to Quebec and New Brunswick and the delays in the Trans Mountain pipeline expansion in British Columbia. 

This tar sands transportation challenge has led to industry efforts across the U.S. to develop new infrastructure such as oil-by-rail terminals and pipelines in port cities. Canadian oil-by-rail exports to the U.S. just set a new record in June. As DeSmog has reported before, the oil industry has been clear about wanting to expand its options to get oil to the West Coast and port cities like Portland, Oregon.

However, serious local opposition has led to several major proposed oil-by-rail terminals being blocked on the West Coast in the past several years — including what would have been the largest such terminal in the country in Vancouver, Washington.

This new ruling in Oregon appears to be a path for other port cities to issue a blanket ban on new oil infrastructure projects instead of having to fight them on a project-by-project basis. And cities have been doing just that.

The title of a ThinkProgress article on a proposed ban on new oil infrastructure for the port city of Baltimore, Maryland — designed to stop new oil-by-rail terminals — sums up the industry’s fears: “West Coast progressive climate strategy could come East for first time.”

A common argument against oil infrastructure projects for port cities is that they offer few benefits to the members of the community, outside of some local jobs, while posing significant risks to safety and public health locally and to the climate globally, and thus are often opposed.

At the height of the American oil-by-rail boom, the port city of Albany, New York, was the largest oil distribution hub on the East Coast. At a 2016 rally opposing the oil trains coming into Albany, city council member Vivian Kornegay repeatedly made this point about her constituents — some of whom live directly alongside the train yard where the oil trains were unloaded. 

“We assume 100 percent of the risk … and miniscule benefits,” said Kornegay.

Same Legal Battle in Another Portland

At the same time that Portland, Oregon, has been battling the oil industry in court over the question of banning new fossil fuel infrastructure, a very similar legal fight has proceeded on the East Coast in South Portland, Maine — another port city.

The Port of Portland (Maine) has traditionally been used to import oil. Some of that oil was shipped from Portland to Montreal, Canada, by a pipeline. However, that situation is no longer economically viable for the oil and pipeline companies, which is why they have proposed reversing the direction of an existing pipeline to bring Canadian tar sands oil to the port in Maine, which has faced fierce local opposition.

In 2014 the City of South Portland passed the Clear Skies Ordinance, banning the loading of crude oil onto tankers in South Portland’s harbor. The American Petroleum Institute, the nation's biggest oil industry lobbying group, has spent large amounts of money fighting these efforts in South Portland.

Activists supporting the ban said they knew they were in for a fight. As Mary Jane Ferrier — one of the local activists in South Portland — told DeSmog at the time: “This isn’t over yet. This is just the beginning.”

Now over four years later, South Portland is awaiting a decision on the recently concluded federal trial that will decide whether the Clear Skies Ordinance violates the Commerce Clause, with a decision expected in the coming months.

As reported by the Portland Press Herald, in a pre-trial brief filed by the Portland Pipe Line Corp., the industry admits what is really at stake if the city of South Portland were to win: setting a precedent that local municipalities can ban new oil infrastructure within their limits.

“The cumulative impact of similar ordinances enacted in other harbor cities would be catastrophic. Parochial efforts designed to curtail or effectively (prevent) cross-border transportation caused our Founding Fathers to include the Commerce Clause in the Constitution in the first place.”

With the latest ruling in Oregon, it appears the legal basis has been laid for what the oil industry considers a catastrophe.

Main image: Portland, Oregon's Marine Drive looking north to Hayden Island. Credit: Washington State Department of Transportation, CC BY-NC-ND 2.0