Court Rules that Portland Oil Terminal Ban Does Not Violate the Commerce Clause

Lambert here: I realize this is only a state court ruling, but I still think it’s big. When we were fighting the landfill, we were consistently told by the State and the private operator that the Commerce Clause forbade us from blocking out-of-state trash from being imported into our state-owned landfill.

By Justin Mikulka, is a freelance writer, audio and video producer living in Trumansburg, NY. Originally published at DeSmogBlog.

In a big win for the City of Portland, Oregon, the Oregon Court of Appeals issued a ruling that the city had not violated the U.S. Constitution’s Commerce Clause by voting to ban any new fossil fuel terminals within its borders.

This is a major victory for the climate and our communities,” said Maura Fahey, staff attorney at Crag Law Center, which represented environmental groups intervening in the case, in a statement. “Industry couldn’t even get its foot in the door of the courtroom to try to overturn the City’s landmark law. This sends a powerful message to local communities that now is the time to take action to protect our future.”

This ruling could have important implications for other communities fighting fossil fuel projects because the court ruled that the city’s ban did not violate the Commerce Clause, which is the main argument the oil industry has used against bans like the ones in Portland, Oregon and other cities.

The Commerce Clause gives Congress the sole power to regulate interstate and foreign trade, and oil companies have argued that bans like the one in Portland are impacting interstate trade. With this ruling, the Oregon Court of Appeals has dealt a significant blow to that legal argument.

This decision sends an important message at a time, when our federal government is dropping the ball on climate change, that cities can and will lead,” said Bob Sallinger, Conservation Director at Portland Audubon Society.

Port Cities Targeted by Industry for Exports

The Canadian tar sands industry has been looking for more ways to get its product to foreign markets, especially after the cancellation of TransCanada’s Energy East pipeline to Quebec and New Brunswick and the delays in the Trans Mountain pipeline expansion in British Columbia.

This tar sands transportation challenge has led to industry efforts across the U.S. to develop new infrastructure such as oil-by-rail terminals and pipelines in port cities. Canadian oil-by-rail exports to the U.S. just set a new record in June. As DeSmog has reported before, the oil industry has been clear about wanting to expand its options to get oil to the West Coast and port cities like Portland, Oregon.

However, serious local opposition has led to several major proposed oil-by-rail terminals being blocked on the West Coast in the past several years — including what would have been the largest such terminal in the country in Vancouver, Washington.

This new ruling in Oregon appears to be a path for other port cities to issue a blanket ban on new oil infrastructure projects instead of having to fight them on a project-by-project basis. And cities have been doing just that.

The title of a ThinkProgress article on a proposed ban on new oil infrastructure for the port city of Baltimore, Maryland — designed to stop new oil-by-rail terminals — sums up the industry’s fears: “West Coast progressive climate strategy could come East for first time.”

A common argument against oil infrastructure projects for port cities is that they offer few benefits to the members of the community, outside of some local jobs, while posing significant risks to safety and public health locally and to the climate globally, and thus are often opposed.

At the height of the American oil-by-rail boom, the port city of Albany, New York, was the largest oil distribution hub on the East Coast. At a 2016 rally opposing the oil trains coming into Albany, city council member Vivian Kornegay repeatedly made this point about her constituents — some of whom live directly alongside the train yard where the oil trains were unloaded.

We assume 100 percent of the risk … and miniscule benefits,” said Kornegay.

Same Legal Battle in Another Portland

At the same time that Portland, Oregon, has been battling the oil industry in court over the question of banning new fossil fuel infrastructure, a very similar legal fight has proceeded on the East Coast in South Portland, Maine — another port city.

The Port of Portland (Maine) has traditionally been used to import oil. Some of that oil was shipped from Portland to Montreal, Canada, by a pipeline. However, that situation is no longer economically viable for the oil and pipeline companies, which is why they have proposed reversing the direction of an existing pipeline to bring Canadian tar sands oil to the port in Maine, which has faced fierce local opposition.

In 2014 the City of South Portland passed the Clear Skies Ordinance, banning the loading of crude oil onto tankers in South Portland’s harbor. The American Petroleum Institute, the nation’s biggest oil industry lobbying group, has spent large amounts of money fighting these efforts in South Portland.

Activists supporting the ban said they knew they were in for a fight. As Mary Jane Ferrier — one of the local activists in South Portland — told DeSmog at the time: “This isn’t over yet. This is just the beginning.”

Now over four years later, South Portland is awaiting a decision on the recently concluded federal trial that will decide whether the Clear Skies Ordinance violates the Commerce Clause, with a decision expected in the coming months.

As reported by the Portland Press Herald, in a pre-trial brief filed by the Portland Pipe Line Corp., the industry admits what is really at stake if the city of South Portland were to win: setting a precedent that local municipalities can ban new oil infrastructure within their limits.

The cumulative impact of similar ordinances enacted in other harbor cities would be catastrophic. Parochial efforts designed to curtail or effectively (prevent) cross-border transportation caused our Founding Fathers to include the Commerce Clause in the Constitution in the first place.”

With the latest ruling in Oregon, it appears the legal basis has been laid for what the oil industry considers a catastrophe.

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About Lambert Strether

Readers, I have had a correspondent characterize my views as realistic cynical. Let me briefly explain them. I believe in universal programs that provide concrete material benefits, especially to the working class. Medicare for All is the prime example, but tuition-free college and a Post Office Bank also fall under this heading. So do a Jobs Guarantee and a Debt Jubilee. Clearly, neither liberal Democrats nor conservative Republicans can deliver on such programs, because the two are different flavors of neoliberalism (“Because markets”). I don’t much care about the “ism” that delivers the benefits, although whichever one does have to put common humanity first, as opposed to markets. Could be a second FDR saving capitalism, democratic socialism leashing and collaring it, or communism razing it. I don’t much care, as long as the benefits are delivered. To me, the key issue — and this is why Medicare for All is always first with me — is the tens of thousands of excess “deaths from despair,” as described by the Case-Deaton study, and other recent studies. That enormous body count makes Medicare for All, at the very least, a moral and strategic imperative. And that level of suffering and organic damage makes the concerns of identity politics — even the worthy fight to help the refugees Bush, Obama, and Clinton’s wars created — bright shiny objects by comparison. Hence my frustration with the news flow — currently in my view the swirling intersection of two, separate Shock Doctrine campaigns, one by the Administration, and the other by out-of-power liberals and their allies in the State and in the press — a news flow that constantly forces me to focus on matters that I regard as of secondary importance to the excess deaths. What kind of political economy is it that halts or even reverses the increases in life expectancy that civilized societies have achieved? I am also very hopeful that the continuing destruction of both party establishments will open the space for voices supporting programs similar to those I have listed; let’s call such voices “the left.” Volatility creates opportunity, especially if the Democrat establishment, which puts markets first and opposes all such programs, isn’t allowed to get back into the saddle. Eyes on the prize! I love the tactical level, and secretly love even the horse race, since I’ve been blogging about it daily for fourteen years, but everything I write has this perspective at the back of it.


  1. MK

    Let’s hope the Supreme Court declines to take this case up. The new majority may not concur with Oregon’s.

    1. Bill Smith

      Does it have to go to the Supreme Court or can any federal judge over rule this if the case gets into the federal courts?

      1. Punxsutawney

        It would go through the appellate process and end up in the 9th Circuit Court first where it would have a decent if not certain chance of being upheld. But from there it would go to the supremes and if anyone thinks it won’t be overturned there, well, I have a bridge to sell you.

        1. Fraibert

          That’s not correct.

          The Oregon Court of Appeals issued the decision under discussion here. Assuming there is no motion for reconsideration made to the Court of Appeals, the next level of appeal would be to the Supreme Court of Oregon. Again, provided no motion for consideration, then the ultimate appeal would be to the U.S. Supreme Court, as the case presents a federal constitutional issue.

          The U.S. Court of Appeals for the 9th Circuit would have no involvement with this case.

  2. divadab

    Does anyone doubt that the corporatist Supreme Court will enforce the will of the oil cartel? They’ve already ruled that a fictitious entity that exists only on paper and has no body let alone speech organs is eligible for protected free speech rights under the First Amendment. (Citizens United). Free speech rights that apply only to natural persons. You know – citizens who are humans.

    A Supreme Court so corrupt and so contemptuous of the Constitution and basic logic that an eight-year old can see it will do whatever it is told to do and Constitution be damned.

    1. jsn

      The great thing from the neoliberal perspective about the body-less corporate entity is you can’t poison it, but it gets to poison everything else.

      I mean really, what would the do to me if I went around deliberately poisoning the ground water, lakes and rivers and the air.

  3. Jeff

    Lambert: It appears from the initial comment that you faced a different issue when fighting your landfill. in that case you are implying that you were trying to treat out-of-state and in-state waste differently. That is generally viewed as clearly forbidden under the Commerce Clause. Here Portland is trying to prevent all oil terminals, not treat in-state and out-of-state differently.

    1. Fraibert

      There’s another element of the “Dormant Commerce Clause” doctrine–that a state cannot seek to unduly burden interstate commerce or regulate it. It’s almost metaphysical figuring out the line between constitutional health and safety regulations and unconstitutional burdening of interstate commerce, and I don’t think the Supreme Court has generally found state regulation unconstitutional on this ground.

      Still, this strand of the doctrine is what is probably being invoked in the case.

      The out-of-state discrimination component, though, is a stronger part of the Dormant Commerce Clause. States are required to treat commerce originating in-state and out-of-state the same. So, for example, no extra taxes on out-of-state commerce or prohibiting out-of-state companies from doing something that in-state companies are allowed to do, absent exceedingly strong justifications.

  4. lyman alpha blob

    Excellent news!

    On reading the title, I thought it was going to be about the pending issue in Maine and I see the article touches on that. Since this does set precedent, I’ll be forwarding this article to the Protect South Portland group that formed to contest the oil company here, just in case they haven’t seen it yet. Hopefully the legal defense is on the ball but you never know, so thanks for posting this.

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