State agrees with clean fuels fans: Court ruling allows go-ahead
By Andy Giegerich
Sustainable Business Oregon editor
Clean fuels supporters say an Oregon Justice Department ruling clears the way for an array of new low-carbon standards.
The Justice Department deemed Oregon’s Clean Fuels program a go after reviewing the recent Ninth Circuit Court of Appeals’ decision on California’s Low Carbon Fuel Standards. Clean fuels backers wanted the Justice Department to interpret the appeals court’s decision striking down constitutional challenges to California’s program.
Oregon officials said the Ninth Circuit clearly found that the low-carbon fuel standard is not unconstitutional on its face and that the ruling did not prevent states such as Oregon from adopting such standards.
However, the appeals court’s decision, which had reversed a district court ruling, “does not permanently foreclose an ultimate conclusion that the standards violate” the constitution. The appeals court did, though, overrule all of the district court’s decrees on the matter.
The appeals court could rehear the case.
Dick Pedersen, the state’s DEQ director, put it this way in a note detailing the state’s findings:
“One minor aspect of the Ninth Circuit’s decision has apparently caused considerable confusion, leading to the incorrect belief that Oregon is preempted from adopting its own LCFS. The Clean Air Act gives California special authority to regulate fuel components or additives even if EPA has set national standards. That same statutory section also provides that other states are preempted from regulating fuel components or additives when national standards exist. But the EPA has not adopted national standards limiting the carbon content of fuels, so that provision is not applicable to Oregon and nowhere did the Ninth Circuit hold that Oregon was preempted from adopting LCFS. The court merely made reference to this section of law when it ruled that California’s unique status under Clean Air Act does not shield the state’s LCFS from a interstate commerce challenge. A clear and balanced reading of the decision shows that the court did not even consider whether the Clean Air Act prevents other states from adopting a LCFS.”
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