States urge dismissal of Oregon LCFS suit
OREANDA-NEWS. August 20, 2015. Oregon and the other Pacific coast states yesterday asked a federal judge to kill an industry lawsuit against its low-carbon fuel standard (LCFS), arguing the case is premature and contrary to recent court decisions.
Oregon, Washington and California in their briefs said the case should be dismissed in light of last week's decision by a federal judge in California to dismiss the remaining arguments in a refining industry lawsuit against that state's LCFS.
The federal court lawsuit brought by the American Fuel and Petrochemical Manufacturers association (AFPM), American Trucking Association and Consumer Energy Alliance echoes arguments they made against the California LCFS. The judge in that case said that the AFPM lawsuit could not go any further because of a 2013 decision by the US Ninth Circuit Court of Appeals that said the California program did not explicitly discriminate against out-of-state products in violation of the US Constitution.
That decision should shield the Oregon program from similar charges, the states said. They also said it is too soon to hear the case because there is no way to tell if the Oregon rule will discriminate against out-of-state products since they do not take effect until next year. Oregon flied a brief on its own while California and Washington jointly filed their arguments.
Under federal legal doctrine, courts can invalidate state laws if they discriminate on their face or have the express purpose of discriminating against out-of-state products, in violation of the US Constitution's commerce clause. They can also strike down laws if they have the effect of creating barriers to interstate trade that outweigh any legitimate state purpose, an issue raised by ethanol producers that the California court will consider later this year. The industry lawsuit argues the Oregon LCFS does both and also tries to regulate the conduct of industry outside of Oregon's borders.
The final rules for the Oregon program are still in flux. The state Department of Environmental Quality is working on amendments to be approved this fall and then take effect before January.
The states also said the LCFS programs are "in harmony with" federal Clean Air Act programs such as the renewable fuel standard (RFS). AFPM has argued the LCFS undermine portions of the RFS, including a carve-out for older ethanol plants that exempted them from improving their carbon intensity.