OR Updates

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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