Columbia Pacific Building Trades Council v. City of Portland

The Oregon Land Use Board of Appeals (Board) found that amendments to the City of Portland, Oregon, zoning ordinance prohibiting new bulk fossil fuel terminal and expansion of existing terminals violated the dormant Commerce Clause. The Board therefore reversed the amendments. The Board concluded the amendments were discriminatory in practical effect because, though facially neutral regarding the origin and destination of fossil fuels, the amendments were intended to preclude construction of new or expanded terminals that would serve interstate and international markets. The Board further found that the City had failed to demonstrate that the amendments served legitimate local interests—including a desire to reduce Portland’s contribution to climate change—that could not adequately be served by reasonable nondiscriminatory alternatives. The Board said the City had identified nothing in the amendments directed at accomplishing the goal of reducing local contributions to greenhouse gas emissions and climate change and said that “we do not believe the city can, consistent with the dormant Commerce Clause, deliberately attempt to slow or obstruct the flow of fossil fuels from other states to consumers in other states or countries with the apparent goal or reducing generation of greenhouse gases elsewhere in the world, and justify that attempt as a legitimate local interest.” The Board also considered whether the amendments, even if deemed nondiscriminatory, could meet the Pike balancing test under the dormant Commerce Clause and concluded that they could not, citing local benefits that were “attenuated at best” and the potentially significant burdens on national and international markets in fossil fuels. The Board also sustained some challenges to the amendments based on local, regional, and state standards.

Environmental and public health groups moved to intervene on the City’s behalf.