An Oregon state court has dismissed an industry challenge to Oregon Governor Kate Brown’s climate action executive order, EO 20-04, which set stricter goals for reductions in the state’s greenhouse gas (GHG) emissions and directed state agencies to implement policies and rules to achieve those goals. The plaintiffs sought to have EO 20-04 declared an unconstitutional infringement on the powers of the legislature, but the court ruled the plaintiffs lack standing because the agencies have existing legislative authority to adopt GHG emission rules even without the governor’s order.
Gov. Brown issued EO 20-04 following a recurring standoff in the legislature over adopting quicker and greater reductions in GHG emissions. Despite Democrats having supermajorities in both houses of the legislature, a group of Republican senators and representatives staged walkouts over GHG emissions legislation during both the 2019 and 2020 sessions, depriving the legislature of a quorum and thwarting proposals to set more ambitious goals. Following Gov. Brown’s executive order EO 20-04 issued in March 2020, several state agencies have issued proposed action plans to implement the order. Among those agencies, the Oregon Department of Environmental Quality issued preliminary work plans to expand the Oregon Clean Fuels Program, and reduce methane emissions from landfills; and final work plans to cap and reduce GHG emissions, and reduce food waste.
The industry challengers — comprised of a fuel distributor, trucking company, family farm and industry trade groups — contended that EO 20-04 intrudes on statutes the legislature passed in 2007 by further increasing the GHG emissions reductions goals, directing state agencies to exercise authority to facilitate achievement of the GHG emissions reduction goals, adopting specific clean fuel standards, and devising sector-specific GHG cap and reduce programs.
The court’s November 30 ruling considered only the issue of the plaintiffs’ standing, which has three elements: 1) whether the challenged law causes some injury to or impact upon a legally recognized interest of the plaintiffs’, beyond an abstract interest in the correct application or validity of the law; 2) whether the claimed injury or impact is real or probable, not hypothetical or speculative; and 3) that a decision by the court would have a practical effect on the rights that the plaintiff is seeking to vindicate.
The court ruled that the plaintiffs met the first two elements. Plaintiffs’ marketing, distribution, sale or use of large quantities of transportation fuels is directly impacted by EO 20-04 and is a legally recognized interest. The question of whether the order conflicts with the Oregon Constitution and state law satisfies the real injury element, even if no rules have been adopted that affect the plaintiffs. But the court ruled that the plaintiffs’ case failed on the third element because executive agencies could still proceed with promulgating rules regarding GHG emissions and Clean Fuel Standard even without EO 20-04, in the court’s words, “effectively giving no teeth to any declarations by this court.” The court ruled the plaintiffs lack standing to challenge the order because the court could not rectify or redress any potential injury to plaintiffs.
This likely is not the last word on EO 20-04. The court’s decision may be appealed. Even if the Executive Order itself survives appellate review, there probably will be further legal challenges to any rules that agencies adopt under the order.
Before proceeding, please note: If you are not a current client of Lane Powell PC, please do not include any information in this email that you or someone else considers to be confidential or secret in nature. Prior to the establishment of a lawyer-client relationship, unsolicited emails from non-clients containing confidential or secret information cannot be protected from disclosure.