The Oregon Court of Appeals on Wednesday invalidated the state’s landmark Climate Protection Program (CPP), which aimed to slash greenhouse gas emissions from fossil fuel companies by 90 percent by 2050.
The state’s rulemaking failed to “substantially comply” with the requirements for disclosure when adopting rules under the federal Clean Air Act of 1970, a three-judge panel of the state appeals court said.
The ruling follows a legal challenge by farmers, fossil fuel companies, and others, and comes as a setback to the Oregon state government’s climate agenda.
The CPP, launched last year, was touted as one of the nation’s most ambitious climate programs. It set a target for the reduction of greenhouse gas emissions by 50 percent by 2035 and by 90 percent by 2050.
Natural gas companies would account for at least 26 percent of the target reductions under the plan, which was enacted in 2021 by then-Gov. Kate Brown after more than a year of public comments and meetings by the state’s Environmental Quality Commission (EQC).
The petitioners, including the primary opponents of the plan Northwest Natural, alleged that the state EQC, the policy and rulemaking board of the Department of Environmental Quality, erred in its rulemaking for the program.
Lawyers for the petitioners, which included Northwest Natural, Avista Corporation, and Cascade Natural Gas Corporation, argued that the EQC failed to disclose to them and others that hold air pollution permits under the federal Clean Air Act a written explanation of why the CPP goes beyond federal limits and any options considered and discarded.
This was the argument that the court’s decision hinged on.
Judge Kamins clarified that the decision focused on one objection specifically, which was the failure to meet the disclosure requirements related to Title V permits under the federal Clean Air Act.
“Specifically, we agree that the [EQC], in adopting the CPP rules, did not comply with the heightened disclosure requirements applicable to it when it adopts rules that apply to entities required to obtain Title V permits under the federal Clean Air Act,” Judge Kamins wrote in the ruling.
“Because EQC, when adopting the CPP rules, did not comply—or even substantially comply—with the heightened disclosure requirements applicable to it when adopting rules that apply to Title V sources, we conclude that the CPP rules are invalid.”
The Clean Air Act requires Oregon, along with other states, to uphold federal clean-air standards by utilizing a permit system applicable to significant industrial facilities and other major emission sources. This regulatory framework is commonly referred to as Title V.
Joining Judge Kamins on the panel were Judge James Egan, a former judge on the Court of Appeals, and Rives Kistler, a retired justice from the Oregon Supreme Court.
“The court did not make a decision about whether the Environmental Quality Commission has authority to adopt the Climate Protection Program,” Ms. Wirtis said in a statement, adding that the department is confident that it has the authority to adopt and enforce the program. Ms. Wirtis said the department will evaluate its next steps with the state Department of Justice.
David Roy, a spokesperson for Northwest Natural, said he was pleased with the court’s decision and that the company is committed to moving toward a low-carbon energy future, reported Oregon Public Broadcasting.
“We believe in effective climate policy and remain committed to moving toward a low-carbon energy future while safely and reliably serving our customers,” Mr. Roy told the outlet.
