- New Klamath TMDLs: An Impossible Standard? (March 23, 2020)
- Oregon Governor Kate Brown Issues Executive Order Calling for Substantial Reductions in Greenhouse Gas Emissions (March 23, 2020)
- Oregon DEQ Issues Guidance on Enforcement Discretion Requests During COVID-19 Pandemic (March 23, 2020)
- Most Recent Amendment to the Groundfish Fishery Management Plan a Rare Source of Agreement (November 26, 2019)
- Oregon Adopts Renewable Natural Gas Portfolio Standards (September 23, 2019)
- Revisions Contemplated for Oregon’s Greenhouse Gas Reporting Program (September 3, 2019)
- New Oregon Legislation Revs the Engine for Electric Vehicle Adoption (July 25, 2019)
- Oregon Considers Major Change to Water Rights (May 28, 2019)
- DEQ Seeks Public Input on Recommended Procedures for Cleaner Air Oregon Risk Assessments (March 29, 2019)
- Supreme Court Review Sought of Ninth Circuit Opinion Upholding the Oregon Clean Fuels Program (February 11, 2019)
- Oregon Adopts Updates to the Clean Fuels Program (February 11, 2019)
- Oregon Legislators Unveil Cap-and-Trade Bill (February 11, 2019)
March 23, 2020
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.
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.
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.”
November 26, 2019
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.
September 23, 2019
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.
September 3, 2019
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 Weber, Gus Winkes
July 25, 2019
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.
May 28, 2019
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
March 29, 2019
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
February 11, 2019
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
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
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.