Oregon DEQ says it will work to reinstate Climate Protection Program after state Court of Appeals invalidated it

PORTLAND, Ore. (KTVZ) — The Oregon Department of Environmental Quality said Monday it will begin the process to reinstate the Climate Protection Program in the first quarter of the year following a December ruling from the Oregon Court of Appeals that upheld a challenge invalidating the program.

The court decided that DEQ did not fully comply with notice requirements during the rulemaking process for the program, thereby invalidating the final rules and the program. The court’s ruling did not impact the Environmental Quality Commission’s underlying authority to establish and enforce the Climate Protection Program, DEQ said.

DEQ has decided not to appeal this decision. Following the appeal deadline, the court will issue a judgment finalizing its decision and the Climate Protection Program will no longer be in effect.

“DEQ strongly disagrees with the court’s decision, but we accept it,” said DEQ Director Leah Feldon. “The Climate Protection Program is a critical component to meeting Oregon’s greenhouse gas reduction goals. Instead of pursuing the lengthy and uncertain appeals process, we’re taking the shortest path to reinstating the program – going back through the rulemaking process.”

The rulemaking process typically takes about 12 months, including a public comment period. As with all rulemakings, DEQ said it will ensure opportunities for interested parties and the public to share their perspectives and feedback. The final step of DEQ’s rulemaking process is to propose the rules for adoption to the agency’s governing body, the Environmental Quality Commission.

“We must keep pushing to reduce GHG emissions, and I know DEQ will continue to be a key leader in making sure Oregon meets its goals,” said Governor Tina Kotek. “Though the important work of the CPP has been delayed, DEQ will again be undertaking significant community engagement to develop this next stage of strong climate policy to meet our statewide GHG emissions reduction targets.”

The Climate Protection Program was designed to curb climate pollution from fossil fuels by 90% by 2050. This type of climate policy is critical for Oregon to achieve its climate goals.

Sign up to be on the Climate Protection Program email list through GovDelivery to get the latest updates and information about this process.

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News release from the Oregon Environmental Council:

Broad coalition backs Governor and DEQ’s commitment to rapidly restore cornerstone Climate Protection Program

PORTLAND, Ore. — The Oregon Department of Environmental Quality (DEQ) today announced plans to reestablish the state’s landmark Climate Protection Program, following a Court of Appeals ruling to invalidate the rules based on a procedural technicality. 

A coalition of environmental justice, climate, and business organizations who intervened defensively in the case, including Beyond Toxics, Oregon Business for Climate, Oregon Environmental Council, Climate Solutions, and Environmental Defense Fund–all represented by Crag Law Center–and the Natural Resources Defense Council (NRDC), issued the following statement in response to DEQ’s announcement: 

“We applaud the State’s decisive action to reinstate Oregon’s Climate Protection Program without further delay. Oregonians have long demanded that fossil fuel companies take responsibility for the devastating harm they cause to our lives, our families, and our communities. Every day that the fossil fuel industry delays climate action is another day justice is denied to Oregon communities– especially Black, Indigenous, people of color, low-income, rural, and other communities who stand to benefit the most from emissions reductions and economic prosperity under the Climate Protection Program. It’s shameful that Oregon’s oil companies and gas utilities like NW Natural Gas sought legal action to overturn this cornerstone climate policy at the expense of people and communities across Oregon. 

Today, Governor Kotek doubled down on her commitment to uphold Oregon’s bedrock climate policies and reach our state’s climate goals. Now, it’s up to DEQ leadership to swiftly restore the protections we need to ensure a healthy climate future for all Oregon families. We will be watchdogging this process every step of the way to ensure this delay due to a procedural technicality does not result in weakening of the underlying program, which was already the result of years of rigorous study, community engagement and agency process. We insist that the Department and the Environmental Quality Commission adopt the most expeditious schedule for program reinstatement consistent with legal prudence. We look forward to seeing this law reinstated so that we can get back to the urgent work of investing in low-income, rural and communities of color who have borne the brunt of climate and economic injustice for too long. 

We are in the decisive decade for climate action. Without the Climate Protection Program, Oregon simply does not have an adequate or workable plan to achieve the state’s climate goals. Our state also misses out on the innovation, job creation, and energy cost savings that this program will drive, that are vital for our economy and household budgets. It is imperative that the State hold firm in its progress toward growing clean energy industries that create local, high-quality jobs across Oregon. As DEQ moves forward with a process to reestablish the Climate Protection Program, we expect the agency to maintain the science-based integrity of these rules to ensure Oregon stays on track to meet its climate goals.”

Background:

Oregon’s Climate Protection Program went into effect in January 2022, critically requiring a 90% reduction in climate emissions by 2050 from some of Oregon’s largest polluters: oil and methane gas companies. The program was developed through a robust 18-month process and informed by extensive input from environmental justice, labor, climate, and business community leaders, as well as companies regulated by the program. More than 7,600 Oregonians weighed in during the original Climate Protection Program rulemaking, and the overwhelming majority were in favor of strong protections for climate and communities. 

Prior to the Court’s decision to invalidate the rules, the Climate Protection Program was projected to achieve 45% of the state’s targeted emissions reductions by 2035, and invest hundreds of millions of dollars annually in environmental justice communities across Oregon. Oregonians were eagerly awaiting the Climate Protection Program’s investments in their communities in projects like rooftop solar, home energy efficiency retrofits, and electric vehicle infrastructure. The court’s ruling denies communities of color, low-income, and rural Oregon communities the near-term economic, health and job creation benefits promised by the CPP’s Community Climate Investment program. 

NW Natural Gas, Cascade Natural Gas, Avista, Western States Petroleum Association, Oregon Farm Bureau, Oregon Business & Industry Association, and Associated Oregon Loggers and a dozen industry petitioners filed a challenge to the program in March 2022. One of the three gas utilities, Avista, was caught attempting to use customer dollars to fund the lawsuit. Advocates and community groups say that the ruling is just the latest in a long battle waged by the oil and gas industry to skirt accountability for destruction caused by climate-fueled wildfires, droughts, and heat waves that are causing increasing harm to Oregonians’ health and livelihoods. As the State found in its assessment of the Climate Protection Program, the failure to achieve the program’s pollution reduction requirements would exacerbate the negative impacts of climate change on Oregon’s economy. 

Joining as defenders of the State in amicus filings in the litigation were: Affiliated Tribes of Northwest Indians, Northwest Environmental Defense Center (NEDC), Pineros y Campesinos Unidos del Noroeste (PCUN), NAACP Eugene-Springfield, Verde, Community Energy Project, Rogue Climate, Oregon Public Health Association, Our Climate, Columbia Riverkeeper, and Oregon businesses representing several industries. In their January 2023 filings, they pointed out that the state has an obligation to protect communities against the health and economic impacts of climate change, and highlighted the immense benefits Oregon stands to gain by maintaining a strong Climate Protection Program.