Industry Groups Challenge OR's Clean Fuels Program

Challenge to Ore. Fuel Standards Is a Legal Long Shot
– Law360

Law360 interviewed Manatt's Craig Moyer, chair of the firm's Land, Environment and Natural Resources division, for an article on how a trio of energy and transportation industry groups are seeking to block Oregon's recently enacted low-carbon fuel standard.

Law360 reports that Oregon Gov. Kate Brown signed a bill earlier this month that lifted the sunset on Oregon's Clean Fuels Program, which was due to expire this year. The bill reduces the carbon intensity of transportation fuels by 10 percent over the next 10 years and requires importers of transportation fuels to reduce the average carbon intensity of fuels they provide in Oregon to meet the annual clean fuel standards. Seeking to block the program, a trio of industry groups claim it illegally discriminates against out-of-state fuels, violates the Constitution's commerce clause and is preempted by the Clean Air Act.

Industry groups made similar claims in challenging California's Low Carbon Fuel Standard. However, the Ninth Circuit concluded in 2013 that the program was not facially discriminatory and that the standard was not an impermissible extraterritorial regulation. The U.S. Supreme Court refused to review the appeals court's decision in June.

"I think they're largely the same arguments; this is mostly a commerce clause issue," said Moyer. "Even the panel deciding the California case focused on the commerce clause analysis."

Read the article here