OR Updates

November 25, 2020

Oregon Adopts a Temporary Standard for COVID-19

Oregon has joined Michigan and Virginia in adopting an emergency temporary rule for COVID-19. On November 6, 2020, Oregon Occupational Safety & Health (Oregon OSHA), a division of the Department of Consumer & Business Services, issued a temporary Oregon OSHA COVID-19 rule. Temporary Rule 437-001-0744, Addressing COVID-19 Workplace Risks, took effect on November 16, 2020. It will remain in effect until May 4, 2021, unless repealed or revised before that time. With the growing number of emergency temporary standards among state plan states, it is increasingly likely that federal OSHA under a Biden Administration will also adopt such a standard. Read the full article here. – Authors: Mark Duvall, Jayni Lanham, Tracy Williams

November 20, 2020

Landmark Agreement to Remove Klamath River Dams

On November 17, 2020, the Governors of California and Oregon announced a joint agreement to remove four hydroelectric dams on the Klamath River. The landmark agreement, entered into by the states, PacifiCorp, the Yoruk and Karuk Tribes, and the Klamath River Renewal Corporation (KRRC), marks an important milestone to revive plans to remove the dams and begin restoration of the lower Klamath River.

The parties executed a Memorandum of Agreement detailing how to implement the amended Klamath Hydroelectric Settlement Agreement (KHSA). The KHSA works to provide additional resources to support dam removal. The initiative will address decline in fish populations, in addition to improving river health to complete a massive salmon restoration effort allowing salmon and steelhead to regain access to more than 400 miles of historical habitat. 

The salmon restoration project and dam removal will also reflect the important role that these salmon habitats and river systems have for tribal communities and culture. 

The project will be funded by the States of Oregon and California, as well as PacifiCorp. The funding agreements will help to address concerns from the Federal Energy Regulatory Commission (FERC) and the requirements for fully funding the project.

Next, FERC must approve the transfer of the license for the dams from PacifiCorp to the KRRC and the states. After transferring the license, FERC must also approve the dam removal plan. Once FERC issues these two approvals, the KHSA should be implemented. The proposed schedule for implementation allows for time for these approvals, with the project set to begin in 2022 and dam removal to occur in 2023. Remediation and restoration of the site will continue beyond 2023. – Author: Lucy Infeld

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October 27, 2020

Climate Change Litigation: Oregon Rejects Expansion of Public Trust Doctrine

On October 22, 2020, the Oregon Supreme Court rejected claims by youth climate activists seeking to expand the state’s public trust doctrine to address climate change. The court ruled that the state did not have an affirmative “fiduciary” obligation to undertake measures to reduce greenhouse gas (GHG) emissions to protect environmental resources, such as navigable waters, that are subject to the public trust doctrine. The article was re-published in the November edition of the Oregon State Bar Association Environmental & Natural Resources Section's E-Outlook. Read the full article here. – Authors: Dave WeberGus WinkesEric Christensen, Will Enoch

October 13, 2020

Oregon Releases Updated Ecological Risk Assessment Guidance

On September 29, 2020, the Oregon Department of Environmental Quality (DEQ) released updated guidance on Conducting Ecological Risk Assessments to aid in evaluating ecological risks at contaminated sites and in determining whether, based on those risks, remedial action is required. The guidance identifies circumstances under which ecological risk assessments (ERAs) are necessary during remedial investigations and options for conducting those assessments. Read the full article here. – Authors: Gus Winkes, Olivia Parish

August 26, 2020

Petition Filed to List Western Ridged Mussel as an Endangered Species

On August 18, 2020, the Xerces Society for Invertebrate Conservation filed a petition to list the western ridged mussel as an endangered species under the Endangered Species Act (ESA).

The western ridged mussel (Gonidea angulata), is found in the rivers and streams of Washington, Oregon, Idaho, California, and Nevada, but in less than 60% of its historic range. Several populations of mussels in Washington and Oregon have recently experienced sudden die-offs, reducing populations even further. The die-offs have occurred in rivers across the region—such as the Chehalis River in Washington and the Crooked River in Oregon. The results are devastating mussel beds, often with thousands of mussels killed over the course of a single summer and spanning tens of river miles. The cause and extent of these die-offs is not well understood. Read the full article here. – Authors: Dave Weber, Ben Mathieu

July 14, 2020

Oregon Supreme Court Applies Landfill Closure Requirements Broadly in Kinzua Resources, LLC v. Oregon Department of Environmental Quality

In a case involving a dispute over landfill closure requirements, the Oregon Supreme Court concluded last week that the owners of Kinzua Resources, LLC, a limited liability company that held the permit for and title to the Pilot Rock Landfill, could not escape liability for failing to comply with Oregon’s landfill closure laws even though they did not own or operate the landfill directly. Read the full article here. – Authors: Lucy Infeld, Rachel Roberts, Gus Winkes

June 15, 2020

Oregon Appeals Court Confirms Water Rights for Hydroelectric Powermpt Lawsuit and National Confusion

Drawing on the long history of Oregon water rights, the Oregon Court of Appeals on June 10, 2020, issued an opinion in WaterWatch of Oregon v. Water Resources Department that carries significant implications for hydroelectric projects as well as for water rights more generally. Read the full article here. – Author: Eric Christensen

May 11, 2020

Criminal Charges Against Hemp Business Prompt Lawsuit and National Confusion

A recent lawsuit filed by an Oregon CBD company highlights the risks of criminal prosecution that industrial hemp businesses still face, notwithstanding the 2018 Farm Bill and robust local regulations – and the potential civil liability that follows. Read the full article here. – Authors: Mackenzie Schoonmaker, Chris Strunk, Hilary Jacobs

May 8, 2020

Oregon Department of Energy Seeks to Revise Rules for Renewable Energy Facilities  

On May 6, 2020, the Oregon Department of Energy issued a Notice of Proposed Rulemaking (NOPR) proposing changes to the jurisdiction of the Oregon Energy Facilities Siting Council (EFSC) and creating a pathway for renewable projects not otherwise subject to EFSC jurisdiction to use the EFSC process for permitting as an alternative to permitting from local jurisdictions. The proposed amendments, if adopted, would be an important advancement in Oregon’s regulatory regime since they would allow renewable generation projects that are otherwise too small to qualify for the EFSC process to use that process when local approval appears difficult or impossible.

The amendments reflect changes to the EFSC regulations required by HB 2329, which was passed by the Oregon Legislature in 2019. That legislation substantially increased the size of solar projects automatically subject to EFSC regulation and the NOPR proposes rules to reflect that change. HB 2329 also permits the sponsors of renewable projects that are too small to be subject to EFSC jurisdiction to voluntarily submit to the EFSC process as an alternative to local permitting. The legislation also permits local jurisdictions to adopt the EFSC process as an alternative to local permitting. Similar amendments to the Energy Facilities Site Evaluation Council process in Washington have proved to be an important avenue for renewable energy projects to be permitted where it was unlikely that they would be approved in local processes. 

A public comment period on the proposed rule changes is now open. All written comments must be received by June 25, 2020 to be considered. B&D will continue to monitor and report on this rulemaking.  – Authors: Eric ChristensenDave Weber

April 29, 2020

Ninth Circuit Orders EPA to Rule on NRDC Petition to Cancel Pet Use Registration for Organophosphate Pesticide

A long-running dispute between the U.S. Environmental Protection Agency (EPA) and the Natural Resources Defense Council (NRDC) moved a step closer to resolution, with the Ninth Circuit U.S. Court of Appeals ordering EPA to either deny NRDC’s petition to cancel an organophosphate pesticide registration or initiate the cancellation process within 90 days. This opinion marks the fourth time in five years that the Ninth Circuit has issued a writ of mandamus in response to delayed federal agency action. 

For the full news alert, see here. – Authors: Dave Barker, Dan Eisenberg, Alan Sachs, Drew Silton

March 23, 2020

New Klamath TMDLs: An Impossible Standard?

During a week full of COVID-19-related uncertainty, a pair of new lawsuits are a reminder of one constant: disputes over Klamath Basin water. This past week, PacifiCorp and Klamath Water Users Association each filed petitions for review of Total Maximum Daily Loads (TMDLs) for temperature in the Upper Klamath and Lost River subbasins. Both petitions argue that the TMDLs, issued by Oregon Department of Environmental Quality (DEQ), set unachievable standards and are unlawfully based on California standards, among other arguments.

For the full news alert, see here. – Author: Rachel Roberts

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Oregon Governor Kate Brown Issues Executive Order Calling for Substantial Reductions in Greenhouse Gas Emissions

Capping a dramatic but ineffective legislative session, Oregon Governor Kate Brown on March 10, 2020, issued Executive Order No. 20-04, “Directing State Agencies to Take Actions to Reduce and Regulate Greenhouse Gas Emissions,” which sets in motion potentially far-reaching administrative actions aimed at drastically reducing Oregon’s greenhouse gas (GHG) emissions over the next three decades. The Executive Order launches rulemaking proceedings for every Oregon agency with jurisdiction over GHG-related matters with the aim of reducing Oregon’s GHG emissions to 80 percent below 1990 levels by 2050.

For a complete overview of this Executive Order, see the full news alert here. – Authors: Eric ChristensenDavid Weber, Megan Withroder

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Oregon DEQ Issues Guidance on Enforcement Discretion Requests During COVID-19 Pandemic

After Governor Kate Brown’s recent state of emergency declaration to address the spread of COVID-19 in Oregon, DEQ issued a statement explaining the circumstances in which it will consider exercising its enforcement discretion for violations caused by the emergency conditions. DEQ sets forth its expectations that companies “do everything possible to maintain the safe and environmentally protective operation of facilities.” 

For the full news alert, see here. – Authors: David WeberAllyn Stern

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November 26, 2019

Most Recent Amendment to the Groundfish Fishery Management Plan a Rare Source of Agreement

On November 19, 2019, the National Marine Fisheries Service issued Amendment 28 to the Pacific Coast Groundfish Fishery Management Plan. This amendment closes a large amount of new areas to bottom trawling, and re-opens certain other more limited areas. These changes will also protect sensitive deep-water habitat and deep-sea corals from bottom fishing.

For the full news alert, see here. – Authors: Allyn Stern, Rachel Roberts

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September 23, 2019

Oregon Adopts Renewable Natural Gas Portfolio Standards

While the high-profile and politically-charged failure of the Oregon legislature to pass cap-and-trade legislation has garnered much public attention, Oregon nonetheless adopted less high-profile but important energy legislation in its recently-concluded session. Chief among these is SB 98, which adopts new portfolio targets for the use of renewable natural gas by Oregon’s natural gas utilities and directs the Oregon Public Utility Commission (OPUC) to establish mechanisms by which those utilities can recover their investments in renewable natural gas projects. The bill was signed by Governor Kate Brown on July 31, 2019.

The new statute creates increasing targets for the use of renewable natural gas in Oregon, moving in steps from 5% in 2020-24 to 30% by 2045-50. While these are non-mandatory targets, and are fundamentally different from the binding renewable portfolio requirements Oregon and other states apply in the electricity sector, they should create strong incentives for investments in renewable natural gas projects by Oregon’s natural gas utilities.

For a complete overview of this new legislation, see the full news alert here. – Authors: Eric ChristensenDave Weber

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September 3, 2019

Revisions Contemplated for Oregon’s Greenhouse Gas Reporting Program

On the heels of the Oregon Legislature’s failure to pass a greenhouse gas (GHG) cap-and-trade program, the Oregon Department of Environmental Quality (DEQ) has initiated a rulemaking process to update the state’s GHG emissions reporting requirements. DEQ initially promulgated GHG reporting rules in 2008. The rules were amended previously in 2010, 2015, and earlier this year in 2019. Oregon requires GHG reporting by a range of entities with GHG emissions exceeding 2,500 metric tons of carbon dioxide equivalent per year as well as by certain fuel, natural gas, propane, and electricity suppliers.

At the end of August, DEQ convened an advisory committee to explore the following proposals: 

  • Adoption of current reporting and emissions accounting protocols into DEQ regulations. DEQ requires adherence to the protocols, which are based on the regulations, but the protocols themselves are maintained separately by DEQ.
  • Use of a single system for reporting data in the GHG reporting program and in Oregon’s clean fuels program, which implements low carbon fuel standards.
  • Requirement that some data in the GHG reporting program and in Oregon’s clean fuels program be verified by independent third parties.
  • Changes to regulations related to enforcement of violations of the GHG reporting program.

Committee meetings are scheduled for September 11 and October 19, 2019. When the committee process is complete, DEQ will release draft rules for public comment before adoption. B&D will continue to monitor and report on this rulemaking. – Authors: Dave WeberGus Winkes

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    July 25, 2019

    New Oregon Legislation Revs the Engine for Electric Vehicle Adoption

    Following on the heels of recent Washington legislation promoting electrification of the transportation system, Oregon Governor Kate Brown on July 15 signed SB 1044, legislation that strengthens Oregon’s legislative and regulatory mandates promoting adoption of electric vehicles (EVs). While Oregon already has a number of programs in place to promote EVs and other non-emitting vehicles, including strong incentives to encourage consumers to purchase electric vehicles and utility pilot programs to expand charging infrastructure, the new legislation ratchets up those programs in three ways.

    For a complete overview of this new legislation, see the full news alert here. – Authors: Eric ChristensenDave Weber

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    May 28, 2019

    Oregon Considers Major Change to Water Rights

    The Oregon legislature considered a bill that would eliminate an automatic stay for irrigation shutdowns in the state during times of drought. Senior water rights holders, including tribes in Oregon, have long criticized the automatic stay. However, irrigators claim that such a bill would endanger their due process rights. Under the western doctrine of prior appropriation, in times of drought junior water rights holders can be forced to stop using their water in order to protect senior water rights. Oregon, however, has allowed irrigators to petition for review of any request to halt water use under an automatic stay mechanism. This provision has been used by irrigators to continue using water while the Oregon Water Resources Department considers the petition.

    However, the bill failed to pass before this session’s legislative deadline. Lawmakers have said they intend to bring the bill back during the next legislative session. More information can be found here. – Author: Lucy Infeld

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    March 29, 2019

    DEQ Seeks Public Input on Recommended Procedures for Cleaner Air Oregon Risk Assessments

    The Oregon Department of Environmental Quality (DEQ) recently released a new draft of its Recommended Procedures for Conducting Toxic Air Contaminant Health Risk Assessments in compliance with the Cleaner Air Oregon rulemaking, OAR chapter 340, division 245. A risk assessment can be a screening risk assessment (Levels 1 and 2), a simple risk assessment (Level 3), or a complex risk assessment (Level 4). The draft procedures were prepared to explain how facilities can prepare approvable risk assessments.

    The Cleaner Air Oregon program and rules are controversial and significant in nature. The rules apply to new, reconstructed and existing facilities that emit toxic air contaminants. Facilities are required to calculate their emissions and the potential health risk the emissions pose to nearby people. If the risk is above Risk Action Levels set in the rules, the facility is required to reduce the risk. Implementation of the Cleaner Air Oregon program is phased in as facilities are “called in” to the program.

    DEQ will consider any comments submitted in finalizing the risk assessment procedures, but will not publish the comments received. The public is invited to provide informal input through email or mail by April 15, 2019. A link to the draft can be found here. – Authors: Dave Weber, Olivia Parish

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    February 11, 2019

    Supreme Court Review Sought of Ninth Circuit Opinion Upholding the Oregon Clean Fuels Program

    The Oregon Clean Fuels Program, which regulates the production and sale of transportation fuels based on GHG emissions, has been a source of controversy and litigation. On September 9, 2018, the Ninth Circuit affirmed the dismissal of a lawsuit challenging the Oregon Clean Fuels Program. Am. Fuel & Petrochemical Manufacturers v. O'Keeffe, 903 F.3d 903 (9th Cir. 2018). On January 9, 2019, the American Fuel & Petrochemical Manufacturers, American Trucking Associations, Inc., and Consumer Energy Alliance filed a petition for writ of certiorari seeking review of the Ninth Circuit’s opinion upholding the Oregon Clean Fuel Program. In particular, they sought review on the questions of whether the Program’s regulation of fuels based on a “life-cycle” analysis constituted impermissible extraterritorial regulation. – Author: Dave Weber 

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    Oregon Adopts Updates to the Clean Fuels Program

    On November 15, 2018, the Oregon Environmental Quality Commission adopted amendments to the Oregon Clean Fuels Program, which regulates the production and sale of transportation fuels based on GHG emissions. These amendments included updates to the models used to determine the carbon intensities of fuels and the resulting changes to the lookup table values, clean fuel standards, energy economy ratios, and temporary fuel pathway codes. The amendments provided also new categories of fuel applications that can be used to generate credits, including forklifts and transport refrigeration units, and added new fuels that could generate credits such as alternative jet fuel and renewable propane. – Author: Dave Weber 

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    Oregon Legislators Unveil Cap-and-Trade Bill

    On February 8, 2019, Oregon lawmakers formally introduced a proposed cap-and-trade bill to address GHG emissions. HB 2020, introduced by the Joint Committee on Carbon Reduction, would make Oregon the second state after California to adopt an economy-wide cap-and-trade system to regulate GHG emissions. HB 2020 builds upon the Clean Energy Jobs bill, an earlier version of cap-and-trade legislation that was considered in both chambers but failed to pass during the last session.

    For a complete overview of this development, see the full news alert here. – Authors: Dave Weber, Olivia Parish

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