AFPM Argues Oregon's Proposed Low Carbon Fuel Standard is Unconstitutional

WASHINGTON, Nov. 20, 2014 (GLOBE NEWSWIRE) -- The American Fuel & Petrochemical Manufacturers (AFPM) today submitted comments in response to the Oregon Department of Environmental Quality's (DEQ) Clean Fuels Program Phase 2 Rulemaking and the proposed rule changes to the Oregon Clean Fuels Program.


"Oregon's version of a Low Carbon Fuel Standard is unconstitutional because it discriminates against out-of-state gasoline and diesel fuel providers in order to promote the development of an in-state biofuels program and imposes more stringent requirements on out-of-state ethanol producers. The Oregon LCFS will harm consumers while providing little to no environmental benefit," said AFPM General Counsel Richard Moskowitz.

In its comments, AFPM specifically argues that Phase 2 of the Oregon Clean Fuels Program, if adopted:

Establishes a fuel standard that is expressly preempted by the Clean Air Act (CAA); Discriminates against out-of-state and foreign commerce in violation of the Commerce Clause of the U.S. Constitution; and Raises serious policy questions that DEQ has not addressed and that undermine the state legislature's objective to reduce GHG emissions.

"In addition to the legal concerns, the Oregon LCFS will hit consumers directly in the wallet. Numerous LCFS studies show that such programs will drive up fuel costs substantially. It's simply what happens when you have a government mandate that tries to force the use of fuels that either don't exist, or that consumers don't want, or – in this case – both," Moskowitz added.

"To add insult to injury, the Oregon LCFS will not accomplish its alleged intended purpose of addressing climate change, as GHG emissions have the same impact whether they are emitted in Portland, Philadelphia or Poland.

"So basically, what you've got is a program that's highly problematic from a legal perspective, that will cost consumers a lot of money, and that will very likely fail to meet its goal even if it's fully implemented. That ought to cause quite a bit of concern to Oregonians and consumers across the country who live in states that are considering going down this road."


In 2009, the Oregon Legislature authorized DEQ to adopt a low carbon fuel standard that would seek to reduce the average lifecycle greenhouse gas (GHG) emissions of transportation fuels by 10 percent over a 10-year period. In 2012, Oregon changed the name of its program from Low Carbon Fuel Standard (LCFS) to Clean Fuels Program.

DEQ has implemented Phase 1 of the Oregon Program by requiring importers or producers of gasoline, diesel, ethanol, biodiesel or any other liquid transportation fuel in Oregon to report and register with DEQ. Phase 2 of the Oregon Program is the subject of DEQ's proposed rule, which would require GHG reductions for transportation fuels by imposing annual average carbon intensity requirements for fuels sold in Oregon beginning in 2016.


Source: American Fuel & Petrochemical Manufacturers