Portland's Fossil Fuel Terminal Ban Upheld by Court of Appeals

by Tonkon Torp LLP

Tonkon Torp LLP

On January 4, 2018, the Oregon Court of Appeals issued its decision[1] in the case brought by Petitioners Columbia Riverkeeper, Portland Audubon Society, and Center for Sustainable Economy, among others, to attempt to uphold the City of Portland's new "Fossil Fuel Terminal Zoning Amendments" adopted December 14, 2016 under Ordinance No. 188142 ("FFT Ordinance"). The FFT Ordinance would stop the expansion of existing fossil-fuel terminals and significantly limit the size of new terminals within the City of Portland. This ordinance was originally challenged by industry groups Columbia Pacific Building Trades Council, Portland Business Alliance, Western States Petroleum Association, and Working Waterfront Coalition in a case against the City of Portland before the Land Use Board of Appeals ("LUBA"). LUBA concluded in a July 19, 2017 opinion that the FFT Ordinance violates the dormant Commerce Clause (protection of interstate commerce) and that the city did not comply with Statewide Planning Goals 12 (Transportation) and 2 (Land Use Planning) when it enacted the FFT Ordinance, thereby invalidating the FTT Ordinance and nullifying any zoning code changes it requires. The Petitioners then brought this case before the Oregon Court of Appeals, which overruled LUBA on the constitutional and the Statewide Planning Goal 12 grounds, but affirmed LUBA's opinion that the city violated Statewide Planning Goal 2. The court then remanded the case to LUBA and, consequently, the city's zoning code changes mandated by the FFT Ordinance are currently not in effect.
The FFT Ordinance was in response to industry proposals in 2015 to build large fuel distribution terminals in the Pacific Northwest, including one in an industrial area of the city proposed by Pembina Pipeline Corporation. Resolution 37168, adopted by the city council on November 12, 2015, put in place the city's new policy to "actively oppose expansion of infrastructure whose primary purpose is transportation or storing fossil fuels in or through Portland or adjacent waterways," and directed the city's Bureau of Planning and Sustainability to develop zoning code changes to implement the resolution, which ultimately resulted in the FFT Ordinance. In the same vein, the city's new 2035 Comprehensive Plan, adopted in June 2016, includes Policy 6.48 (Fossil fuel distribution) to "limit fossil fuels distribution and storage facilities to those necessary to serve the regional market."
If the FFT Ordinance were to take effect, the city's zoning code will prohibit all new bulk fossil fuel terminal use in all base zones. Existing bulk fossil fuel terminal use would still be allowed to a limited extent in the industrial and general employment zones, but only to store the total amount of fossil fuel capacity that existed on January 13, 2017 (i.e., such terminals cannot expand), and they may not store coal. See Portland City Code, Section 33.140. The FFT Ordinance's definition of the term "fossil fuel" includes natural gas, but excludes petrochemicals used for non-fuel products such as fertilizers and paints. See Portland City Code, Section 33.910. Examples of bulk fossil fuel terminals that would be subject to the ban under the revised Portland City Code include terminals for crude oil, petroleum products, natural gas, and coal.
While the case is remanded to LUBA, the court's decision on the constitutional challenge removes the main hurdle faced by the city in implementing the new zoning code. It remains to be seen whether plaintiffs will take this case further by petitioning for Supreme Court review and what the city plans on doing next. But, no matter the outcome, the result is guaranteed to be controversial.

[1] 289 Or. App. 739, Case No. A165618 (January 4, 2018)


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Tonkon Torp LLP | Attorney Advertising

Written by:

Tonkon Torp LLP

Tonkon Torp LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.