Guest Blog by Angus Duncan, Pacific Northwest Consultant to NRDC

Oregon Environmental Quality Commission

Oregon’s Environmental Quality Commission adopted the second state-level economy-wide carbon cap in the country (in December 2021), after California’s.  The resulting Climate Protection Program (CPP) relies on the state’s sovereign authority to regulate environmental hazards, and on supporting authority under the federal Clean Air Act.

The program is under legal attack from the industries and fuel suppliers whose greenhouse gas emissions it would regulate and require to be ramped down between now and 2050.  The plaintiffs include heavy industry, fossil fuel distributors and gas utilities.  Predictably, most or all these companies acknowledge that climate disruption is a serious concern.  Most or all express an intent to reduce their emissions, to be part of the solution.  The state plan just isn’t quite the right vehicle for doing so, they argue.  They are expected to raise questions of fair process and valid statutory authorization.

It's not that the plaintiffs haven’t had opportunities to help shape this and earlier state efforts to cap and reduce emissions.  Two measures offered in the Oregon legislature (in 2019 and 2020) that they could have helped formulate and support.  They regretted – bitterly we can imagine – that neither of these worked for them.  Nor have they offered any alternatives that would work for them and be effective emissions reduction tools.  Some of the parties thought aggressive tree planting might be okay (but not slowing down existing commercial tree harvests).

Why should NRDC care enough about this lawsuit away out in Oregon to file as an intervenor on behalf of the State?

Apart from the merits of defending climate progress wherever it gets traction, there are broader political and institutional reasons.

First, it’s critical that states be able to exercise their sovereign authorities to regulate commerce, protect public health and welfare, and defend clean air and water.  States regulate energy utilities, shape local transportation choices, and enforce the Clean Air Act under delegation from the Environmental Protection Agency[1] (transportation and energy utilities are the largest US sources of greenhouse gas emissions).  Each level of government relies on the other for direction, action and feedback, but a state reserves to itself authority to manage its environmental health and welfare, subject to lawful override by a federal agency.

Second and more important, the states have always been a factory of innovation in policy and program design, including in addressing energy and environmental values.  While we often, and rightly, think of California initiatives in this regard, other states have taken creative steps in dealing with climate issues.  The Regional Greenhouse Gas Initiative, or RGGI, was an early (2009) state-level effort to limit and reduce greenhouse gas emissions.  While some states have wavered in their commitments, the overall effort among now-eleven northeastern states has successfully driven down pollution from electric and gas utilities serving these states, saving billions in public health benefits and generating funding to support energy efficiency and bill reductions for their citizens.

Oregon has its own record of leadership in energy and environmental policies.  It is reliably on every list of most energy efficient states.  It pioneered least cost utility planning that requires choosing least cost – dollars, but also environmental and social costs – energy resources. 

In 2010, electric utilities and environmental advocates here agreed on a plan to shut down the only in-state coal plant far in advance of its operational expected life.  In 2016, the same parties agreed to end deliveries of coal-generated electricity by 2030; and in 2021, they agreed – and the legislature affirmed the agreement – on a first-in-the-nation law requiring its investor-owned electric utilities to be zero carbon by 2040.  As important, the utilities would ramp down to an 80% carbon free supply by 2030.

These agreements were negotiated among utilities, stakeholders and legislators, and had the support of the electric utilities.  In contrast, while the Climate Protection Program gave all parties, including the suing entities, two years of process and privileged positions in draft review and critique, the polluters likely to be regulated under this program could never find a way to be part of the solution.

Lawsuits by polluters to defend their entrenched interests are hardly unusual, nationally or at the state level.  It’s important that they be countered not just by state Departments of Justice defending the state’s authorities, but as well by stakeholders defending the public interest.

NRDC and other national environmental and justice organizations take on this responsibility nationally.  But it’s no less important to defend the public interest in climate action at the state level, if effective emissions reductions are to be realized.  The federal system of government is structured to allocate authorities and responsibilities between the federal government and the states.  Conservative and self-interested economic interests are going to work both ends.  We must be in both places as well.

[1]Oregon is relying on its explicit authority under ORS 468A.010, “[to] restore and maintain the quality of the air resources of the state in a condition as free from air pollution as is practicable, consistent with the overall public welfare of the state.”

About the Authors

Ralph Cavanagh

Energy Co-Director, Climate & Clean Energy Program

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